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"THE  LAW"  AND  THE  LAW  OF 
CHANGE 


By 

NATHAN  ISAACS 


CINCINNATI    LAW   SCHOOL 


REPRINTED  FROM 

UNIVERSITY  OF  PENNSYLVANIA  LAW  REVIEW 
VOL.  65,  MAY  AND  JUNE,   1917 


COPYRIGHT  BY  UNIVERSITY  or  PENNSYLVANIA 
1917 


By 
NATHAN  ISAACS 

CINCINNATI    LAW  SCHOOL 


REPRINTED  FROM 

UNIVERSITY  OF  PENNSYLVANIA  LAW  REVIEW 
VOL.  65,  MAY  AND  JUNE,   1917 


COPYRIGHT  BY  UNIVERSITY  OF  PENNSYLVANIA! 
1917 


"THE  LAW"  AND  THE  LAW  OF  CHANGE. 

A  TENTATIVE  STUDY  IN  COMPARATIVE  JURISPRUDENCE. 

Introduction* 

"The  Law" — let  us  rather  say  Torah.  For  Torah,  literally 
teaching,  denotes  the  whole  of  what  has  been  revealed  to  Israel 
throughout  the  ages — the  teaching  of  the  right  way  of  living. 
The  rabbis  of  the  Talmud  speak  of  "two  Torahs" :  the  Holy 
Scriptures  or  written  law,  which  is  the  foundation,  and  the  oral 
tradition  or  unwritten  law,  which  is  the  development.  Or:  the 
Torah  explicit,  and  the  Torah  implicit.  The  Old  Testament 
moulded  the  Jew's  faith,  but  it  did  not  restrain  his  thoughts. 
Though  in  theory  the  legal  canon  was  closed  forever,  it  did  not 
in  fact  prevent  Israel  from  interpreting  and  developing  its  laws 
and  precepts  with  life-giving  freedom.  Post-Biblical  Jewish 
law  actually  went  beyond  Scripture.  New  provisions  had  to  be 
created  to  meet  new  conditions  which  could  not  have  been  fore- 
seen. The  Scribes  and,  later,  the  rabbis,  for  political,  national 
and — natural  reasons,  endeavored  to  create,  by  legal  fictions,  by 
equity  and  by  legislation,  a  "hedge  round  the  Torah,"  a  "chain 
of  tradition."  The  "law  of  change" — a  law  of  nature — was 
thus  obeyed  by  "Catholic  Israel."  The  cry,  "Back  to  Moses,"  of 
the  short-sighted  Sadducees  was  answered  by  attempts  to  commit 
to  writing  the  oral  law,  out  of  which  attempts  the  Mishnah,  the 
first  post-Biblical  code,  was  compiled,  and  about  which,  for  the 
same  natural  reasons,  grew  up  the  Gemara — the  two  making  the 
Talmud,  properly  so  called.  Compiled,  sifted  and  committed  to 
writing,  it  failed  to  answer  all  the  questions  that  changed  condi- 
tions suggested.  The  "Responses"  of  the  Geonim  mark  the 
beginning  of  post-Talmudic  legal  activity  which  is  still  going  on. 
The  "second  Torah,"  written  and  still  being  written  down,  has 
not  ceased  to  be  designated  as  the  oral  law. 

As  the  Old  Testament  is  a  combination  of  precept  and  nar- 
rative, so  is  the  Talmud  no  mere  law-book  compiled  by  jurists. 

*By  Adolph  S.  Oko,  Librarian,  Hebrew  Union  College. 

2116219 


4  "THE  LAW"  AND  THE  LAW  OF  CHANGE 

Broadly,  the  Talmudic  literature  is  characterized  as  Halakhah 
(way  of  life,  laws)  and  Haggadhah  (narrative,  instruction  or 
homily).  We  should  further  bear  in  mind  that  among  the  Jews 
the  distinction  between  religious  and  secular  law  was  not  known. 
The  division  by  scholars  of  the  Mosaic  legislation  into  moral, 
ritual  and  legal  laws  is  wholly  arbitrary.  Such  distinctions  are 
of  a  comparatively  late  origin  even  in  Western  Europe. 

Modern  Old  Testament  scholarship  sees  in  Biblical  legisla- 
tion not  the  product  of  one  author  or  of  one  generation,  but  of 
centuries.  Like  all  law,  it  was  a  growth — an  expression  of  Israel's 
national  life.  It  passed  through  the  various  law-stages  which 
Sir  Henry  Maine  observed  in  the  historic  development  of  Roman 
and  Indian  law:  from  the  unwritten  to  the  written,  from  the 
formal  to  the  equitable,  and  so  on.  Maine  in  his  Ancient  Law, 
it  would  seem,  has  deliberately  avoided  drawing  illustrations 
for  his  principle  of  legal  development  from  Biblical  legislation. 
The  literature  on  the  subject  that  has  grown  up  since  Maine's 
day  concerns  itself  with  the  sources  and  the  forms  of  Biblical 
laws,  with  questions  of  origin  and  growth  or,  since  the  discovery 
of  the  Hammurabi  Code  especially,  with  their  relation  to  other 
Semitic  legislation,  and  is  in  the  main  the  work  of  archaeologists 
and  Semitists,  and  not  of  jurists.  From  the  latter  we  have  but  a 
few  monographs  on  special  legal  provisions  and  some  occasional 
remarks  on  casual  analogies. 

Modern  study  of  the  Talmud  lags  behind  the  critical  study 
of  the  Old  Testament.  The  Talmud  has  been  one  of  the  prin- 
cipal subjects  of  research  among  modern  Jewish  scholars.  Within 
the  last  fifteen  years  Talmudic  literature  has  occupied  Christian 
scholars  also.  The  principles  of  both  higher  and  lower  criticism 
are  now  being  applied  to  it.  Of  the  numerous  scientific  mono- 
graphs on  special  subjects  in  the  Talmud,  not  a  few  are  con- 
cerned with  its  purely  legal  elements.  The  scientific  study  of 
Talmudic  law  was  first  introduced  by  Z.  Frankel  (I846).1  Since 
then  a  considerable  literature  on  the  subject  has  grown  up.  Most 

1  One  earlier  isolated  case  should  be  noted,  however.  Edward  Cans' 
Erbrecht  contains  a  chapter  entitled  Die  Grundsiige  des  mosaisch-talmudischen 
Erbrechts,  first  published  in  the  Zeitschrift  fiir  die  Wissenschaft  des  Juden- 
thums,  Berlin,  1823. 


"THE  LAW"  AND  THE  LAW  OF  CHANGE  5 

of  it,  to  be  sure,  consists  of  monographs  on  special  laws;  while 
the  few  works  that  treat  of  the  general  subject  are  not  so  much 
concerned  with  the  system  of  Talmudic  law  as  with  the  pro- 
visions of  this  law.  Post-Talmudic  or  latter  rabbinic  law,  it 
should  be  noted,  is  a  rather  neglected  field.  Only  a  beginning  is 
here  discernible.  But  neither  Talmudic  nor  post-Talmudic  law 
has  exercised  the  minds  of  legal  students  to  any  appreciable 
degree. 

Comparative  jurisprudence,  excepting  in  occasional  refer- 
ences pointing  out  analogies  in  forms  and  provisions,  has  taken 
no  account  of  Talmudic  law.  J.  Kohler,  the  well-known  German 
jurist,  may  perhaps  be  regarded  as  the  pioneer  in  this  field  also. 
On  the  basis  of  Goldschmidt's  German  translation  of  the  Baby- 
lonian Talmud  (in  progress),  Kohler  published  a  study  entitled 
Darstellung  des  talmudischen  Rechtes  (1907).  This  work,  how- 
ever, does  not  comprise  the  whole  of  the  legal  portion  of  the 
Talmud  proper;  nor  does  it  take  account  of  such  preeminently 
Halakhic  works  as  the  Siphre,  etc.  It  is  to  Kohlers's  credit, 
though,  that  he  is  the  first  jurist  who  is  not  at  all  a  Talmudist 
to  have  won  Talmudic  law  for  scientific  study.  He  "rational- 
ized" and  systematized  a  good  part  of  it,  and  he  did  it  with  a 
thoroughness  of  scientific  method  that  does  not  leave  much  to 
be  desired.  A  scientific  method,  -however,  does  not  of  itself  pro- 
duce a  science.  Besides,  his  study  is  one  in  comparative  law 
rather  than  in  comparative  jurisprudence. 

To  recapitulate :  of  scientific  studies  of  the  whole  of  Jewish 
law  (Biblical,  Talmudic  and  post-Talmudic)  there  are  none — 
always  excepting  the  necessarily  eclectic  articles  in  cyclopedias; 
of  monographs  there  are  a  considerable  number:  good,  bad  and 
indifferent,  adding  stone  after  stone  to  the  edifice;  while  a  sur- 
vey of  the  whole  field  in  the  light  of  comparative  jurisprudence 
seems  never  to  have  been  attempted.  Dr.  Isaacs  is  thus  the  first 
in  the  field. 

The  present  study,  written  with  a  deeper  knowledge  of  juris- 
prudence than  Talmudists  can  claim  and  a  larger  knowledge  of 
Jewish  history  and  literature  than  jurists  generally  possess,  dis- 


6  "THE  LAW"  AND  THE  LAW  OF  CHANGE 

cerns  the  consecutive  stages  in  Jewish  "Law."  The  road  pointed 
out  by  Maine,  Dr.  Isaacs  is  the  first  to  travel  in  the  field  of  Jewish 
legal  history.2  By  bringing  to  bear  the  progressive  character  of 
modern  jurisprudence  on  Israel's  experience  under  the  "Law," 
we  gain  the  fruitful  conception  that  the  law-cycles  are  recurrent, 
that  they  are  universal — and  not  limited  to  the  "Aryan  race," 
as  ethnic  prejudice  would  assert.  Our  author,  it  should  be  re- 
marked, does  not  think  of  the  cycles  as  stratified  layers,  nor  of 
their  recurrence  as  a  kind  of  Pythagorean  Apokatastasis  or 
Nietzschean  ewige  Wiederkunft.  The  recurrent  cycles  do  pre- 
sent an  upward  development :  recurrent,  they  start  from  the  com- 
paratively higher  order  which  has  previously  been  attained. 

Law  changes  as  language  changes — perhaps  because  lan- 
guage changes.  Laws  are  words ;  words  are  laws.  In  the  begin- 
ning there  were  customs,  conventions — words.  They  became 
laws.  We  have  codification.  Codification  is  law  (or  language) 
stereotyped,  rigid,  fixed,  dogmatic — prosaic.  The  experience 
reflected  in  the  code  is  of  the  past;  and  life  brings  new  experi- 
ences. The  words  acquire  new  meanings  or  shades  of  meanings 
in  different  generations;  among  different  individuals  of  the  same 
generation.  "What  do  they  mean?"  becomes  the  vexing  ques- 
tion. Glossation  inevitably  follows.  The  scribes,  the  learned, 
the  lawyers,  or  the  judges  are  to  discern  their  "true"  meaning 
by  a  logical  process  of  reasoning.  Alas!  reason  soon  becomes 
pseudo-logical  syllogism  and  sinks  into  mere  playing  with  words 
— with  words  or  laws  dead  or  dying;  with  words  without  con- 

'  While  seeing  this  article  through  the  press,  we  have  come  upon  the  foot- 
prints of  a  predecessor,  at  least  along  the  beginning  of  the  road.  The  Jewish 
Review  (London,  1914,  Vol.  4)  contains  an  interesting  article  on  Legal  Devices 
by  Bertram  B.  Benas,  in  which  the  second  chapter  of  Ancient  Law  is  quoted 
along  with  Blackstone  and  Dicey  mainly  in  an  effort  to  justify  the  legal 
evasions  of  the  law  as  "fictions."  In  commenting  on  the  characteristics  in 
legal  history  pointed  out  by  Maine,  the  author  remarks  that  "many  of  them 
are  capable  of  almost  complete  illustration  by  Jewish  legal  history."  Mr. 
Benas,  however,  seeks  illustrations  for  only  two :  the  resort  to  fictions  and 
growth  by  response,  prudentium.  Without  Dr.  Isaacs'  theory  of  recurrent 
cycles  it  would  be  difficult  to  apply  Maine's  principal  observation,  the  sequence 
of  the  instrumentalities,  to  Jewish  law.  And  Mr.  Benas,  indeed,  feels  called 
.upon  to  explain  why  legislation  seems  to  appear  in  the  wrong  place:  the  Jews, 
he  says,  have  no  legislation  in  Maine's  sense!  The  article,  though  apologetic 
in  its  purpose,  is  well  worth  reading,  as  is  its  companion-piece  by  Rev.  Isaiah 
Raffalovich. 


"THE  LAW"  AND  THE  LAW  OF  CHANGE  7 

tent  or  meaning.  Endowed  with  "a  large  and  liberal  discon- 
tent," man  soon  speaks  of  "legalism,"  and  yearns  for  a  live 
message.  Commentation  sets  in.  The  word  or  the  law  now 
becomes  suggestive,  anti-intellectual,  creative — poetical.  Man 
rejoices  in  anticipation  of  an  endless  "creative  evolution."  His 
imagination  is  stirred — only  too  soon  to  find  that  it  is  degen- 
erating into  wild  fantasy.  "True,"  he  says,  "the  Universe  is 
strange  and  deep  and  mysterious;  but  reason,  too,  is  godly  and 
something  worth  while."  Vernunft  f'dngt  wieder  an  zu 
sprcchen.  .  .  .  Life  must  be  made  orderly.  He  craves  for 
reason,  for  order,  for  fixity,  for — legislation.  Legislation  tends 
to  become  codification.  And  the  law-cycle  begins  anew.  Law, 
like  every  other  natural  phenomenon,  we  are  taught,  is  subject  to 
the  "law  of  change." 

Original  in  content,  Dr.  Isaacs'  study  is  not  less  so  in  out- 
look. It  establishes  points  of  contact  with  present-day  currents 
of  thought.  It  breaks  new  ground.  Thus,  among  numerous 
other  things,  it  is  implied  that  there  was  considerable  likeness 
between  the  development  of  rabbinic  and  Christian  thought.  In 
consequence,  polemics  against  "The  Law"  will  now  look  more 
ridiculous  than  ever.  For,  if  the  "hedge"  of  the  rabbis  was  at 
one  time  "legalism" — glossation — an  outward  form  of  law  and 
precept,  it  was  such  at  one  stage  in  the  cycle;  it  became  com- 
mentation (equity)  in  the  next.  "The  Law,"  then,  taken  to- 
gether, presents  a  consistent,  logical  or,  if  you  please,  legal  and 
equitable  endeavor  to  work  out  a  complete  guide  to  the  living  of 
a  perfect  life.  Further:  the  history  of  the  oral  tradition  is  beset 
with  difficulties  to  both  the  traditionalist  and  reformer.  All 
kinds  of  theories  have  been  tried  in  the  balance :  those  of  Frankel, 
Hoffman,  Weiss,  Halevy  and  Professor  G.  Deutsch ;  and  all  were 
recently  found  wanting  by  Professor  J.  Z.  Lauterbach.  Related 
problems  are  the  feud  between  the  Sadducees  and  the  Pharisees, 
the  dissension  of  the  Judaeo-Christians,  the  Karaite  schism,  etc. 
Again,  scholars  are  puzzled  to  find  anti-Pharisaic  or  anti-tradi- 
tional laws  in  the  works  of  Philo,  of  whose  piety  and  earnest- 
ness there  can  be  no  doubt,  and  in  those  of  Josephus,  an  avowed 
Pharisee.  President  K.  Kohler,  in  an  essay  just  published,  dis- 


8  "THE  LAW"  AND  THE  LAW  OF  CHANGE 

cerns  in  the  Halakhah  "a  middle  stage  between  Sadduceeism  and 
Pharisaism."  To  the  students  of  these  historical  problems  Dr. 
Isaacs'  principle  holds  out  a  light.  Not  that  it  attempts  to  solve 
all  the  problems.  But  in  the  new  light  of  his  observations  the 
one  current  theory  may  perhaps  be  verified,  the  other  modified 
and  the  problems  formulated  anew.  It  is  also  highly  interesting 
to  view  more  recent  Jewish  movements  under  the  strong  search- 
light thrown  by  this  study  in  comparative  jurisprudence. 

However,  the  study  can  safely  be  left  to  speak  for  itself. 
Dr.  Isaacs  has  earned  the  thanks  of  students  belonging  to  differ- 
ent schools.  He  neither  reverts  to  the  traditional  view,  nor 
accepts  unreservedly  that  of  the  critics,  nor  attempts  a  com- 
promise between  the  traditional  and  the  critical  schools.  Differ- 
ences of  opinion  as  to  minor  details  are,  of  course,  inevitable; 
but  since  our  author  does  not  press  unimportant  points,  they  may 
well  be  overlooked.  They  do  not  in  the  least  affect  the  general 
course  of  the  argument.  It  is,  indeed,  a  delightful  spectacle  to 
view  Jewish  law  as  a  whole,  and  as  a  connected  whole;  to  see 
its  "reason,"  its  unity,  its  soul.  Truly,  here  we  behold  a  "gov- 
ernment of  laws,  not  of  men." 

Adolph  S.  Oko. 

Hebrew  Union  College  Library,  Cincinnati,  O. 


"THE  LAW"  AND  THE  LAW  OF  CHANGE. 

A  TENTATIVE  STUDY  IN  COMPARATIVE  JURISPRUDENCE. 
THE  CYCLES  OF  LEGAL  HISTORY. 

"A  general  proposition  of  some  value,"  says  Sir  Henry 
Maine,  "may  be  advanced  with  respect  to  the  agencies  by  which 
law  is  brought  into  harmony  with  society.  These  instrumentali- 
ties seem  to  me  to  be  three  in  number,  legal  fictions,  equity 
and  legislation.  Their  historical  order  is  that  in  which  I  have 
placed  them.  Sometimes  two  of  them  will  be  seen  operating 
together  and  there  are  legal  systems  which  have  escaped  the 
influence  of  one  or  other  of  them.  But  I  know  of  no  instance  in 
which  the  order  of  their  appearance  has  been  changed  or  in- 
verted." * 

In  explaining  these  terms,  Maine  draws  occasional  illustra- 
tions from  English  legal  history  which  had  not  been  worked  out 
in  his  day  and  frequent  illustrations  from  Roman  law  between 
the  two  codes — the  Twelve  Tables  and  the  Code  of  Justinian. 
Of  his  use  of  Roman  law  he  says : 

"Much  of  the  inquiry  attempted  could  not  have  been  prose- 
cuted with  the  slightest  hope  of  a  useful  result  if  there  had  not 
existed  a  body  of  law  like  that  of  the  Romans  bearing  in  its  earlier 
portions  the  traces  of  the  most  remote  antiquity  and  supplying  from 
its  later  rules  the  staple  of  the  civil  institutions  by  which  modern 
society  is  even  now  controlled." 

It  is  submitted  that  the  history  of  Jewish  law  furnishes  an- 
other example  that  could  have  been  used,  one  with  a  longer  con- 
tinuous development  than  even  that  of  the  Roman  law — so  much 
longer  that  by  its  study  we  are  enabled  to  assign  to  Maine's  three 
agencies  their  proper  positions  as  mere  arcs  in  a  cycle,  a  con- 
stantly recurring  cycle — of  which  Maine  says  nothing.  In  fact, 
his  explanations  suggest  that  a  society  that  has  passed  from  the 
stage  of  custom  into  that  of  law  uses  one  instrumentality  until 
the  next  comes  into  being;  that  when  the  cruder  instrumentality 
finally  gives  place  to  the  more  perfect  one,  the  functions  of  the 
cruder  have  been  exhausted  for  that  society.  The  same  general 

1  Maine,  Ancient  Law,  Chap.  2. 

(9) 


10  "THE  LAW"  AND  THE  LAW  OF  CHANGE 

observation  is  true  of  the  several  modifications  of  Maine's  theory 
that  have  appeared  from  time  to  time ;  I  shall  refer  in  passing  to 
two  of  them.  Jenks  would  trace  at  least  all  Germanic  systems 
from  caste  to  contract  through  certain  progressive  stages.  Dean 
Roscoe  Pound,  again,  speaks  of  the  stage  of  primitive  law  as 
followed  by  strict  law,  equity,  maturity  of  law  and  some  fifth 
stage  upon  which  Europe  and  America  are  now  simultaneously 
entering.  A  closer  inspection  of  Pound's  stages  will  reveal  that 
they  represent  swings  of  the  pendulum  back  and  forth  between 
strict  law  and  equity.2  It  is  submitted,  however,  that  the 
periods  of  strict  law  and  equity  are  composite  and  that  the  same 
component  parts  are  discernible  in  each  recurrence,  that  a  self- 
repeating  cycle  is  the  result,  and  that  Sir  Henry  Maine's  observa- 
tion has  happily  hit  upon  the  main  features  of  this  cycle. 

We  need  only  write  both  at  the  beginning  and  at  the  end  of 
his  list  "codification" — by  which  we  understand  a  crystallization 
of  law  into  hard  and  fast  rules  definitely  stated,  to  make  the 
self -repeating  cycle:  codification,  fictions,  equity,  legislation, 
codification,  fictions,  equity,  legislation,  and  so  on.3 

This  cycle,  subject  to  a  few  explanations'  which  follow,  it 
seems,  fairly  represents  the  characteristic  trends  in  all  legal  his- 
tories that  have  so  far  been  explored  and  mapped  out  for  us. 

A  code  is  given  to  a  people  or  made  by  them — it  makes  little 
difference.  They  begin  by  studying  the  text,  and  no  expansion 
is  possible  at  first  unless  consistent  with  the  text.  At  least  new 
ideas  must  square  outwardly  with  the  words  of  the  text.  If  they 
cannot  be  squared  in  fact  they  can  perhaps  by  resort  to  fictions. 
The  word  "fictions"  here  even  in  the  comprehensive  sense  in 
which  Maine  uses  it  is  too  narrow.  To  him  the  expression  "legal 
fiction"  signifies  "any  assumption  which  conceals  or  affects  to 


1 1  have  before  me  the  recent  restatement  of  his  theory  in  The  American 
Bar  Association  Journal,  Vol.  3,  pp.  58-64,  January,  1917. 

*  No  account  is  given  here  of  the  stage  known  as  primitive  law.  Its 
characteristics  are  discussed  by  the  writers  mentioned  above  and  by  many 
others.  Whatever  may  be  true  of  it  I  do  not  admit  that  it  is  the  only  stage 
in  which  religion  and  law  are  united.  Jewish,  Mohammedan  and  Hindu 
law  have  never  been  divorced  from  religion,  and  even  modern  European  law 
has  become  isolated  from  religion  only  gradually  and  incompletely.  One 
would  hardly  call  English  law  primitive  up  to  1857. 


"THE  LAW"  AND  THE  LAW  OF  CHANGE  11 

conceal  the  fact  that  a  rule  of  law  has  undergone  alteration,  its 
letter  remaining  unchanged,  its  operation  being  modified."  And 
this  kind  of  fiction  he  connects  with  primitive  society  and  its  super- 
stitions. The  making  of  legal  fictions,  however,  is  but  one  mani- 
festation of  what  I  may  call  literalism.  It  is  the  attempt  to  do 
the  most  with  the  words  before  you.  It  is  not  so  much  the  child 
of  the  perversity  of  the  legal  mind  or  the  superstition  of  primi- 
tive man  as  the  outgrowth  of  practical  needs  that  may  show 
themselves  in  a  very  concrete  way  in  a  highly  civilized  society  as 
well  as  in  a  primitive  community.  Bound  by  a  code,  lawyers 
become  word-students  whose  work  is  marked  by  the  elevation 
of  the  letter  above  the  spirit,  a  regard  for  the  jots  and  tittles  of 
the  law,  a  point  of  view  that  we  may  call  "glossatorial."  To 
make  the  words  fit  life  they  may  be  interpreted  artificially  as 
meaning  something  that  they  obviously  did  not  mean  originally. 
Again,  undue  weight  may  be  given  to  a  peculiar  turn  of  a  phrase 
which  may  have  acquired  a  new  meaning  in  the  course  of  time, 
and  finally  resort  may  be  had  to  methods  of  doing  things  tech- 
nically, though  not  actually,  in  order  to  satisfy  the  law.  Let  us 
call  the  period  of  fictions  then  the  period  of  literalism  or  the 
period  of  the  glossators,  or  word-students. 

Long  before  this  period  ends,  if  it  ever  does  end,  the  second 
and  third  points  of  view  may  appear — in  fact,  schools  may  exist 
side  by  side  and  quarrel  for  many  generations  over  the  relative 
merits  of  literalism  and  equity,  but  finally  we  see  equity  prevailing 
and  a  second  period  in  the  modification  of  laws  is  ushered  in. 
Here,  too,  I  wish  to  call  attention  to  the  fact  that  the  designating 
word  "equity"  represents  but  one  manifestation  of  a  whole  point 
of  view,  a  point  of  view  that  historically  follows  the  glossatorial. 
It  is  the  point  of  view  of  the  student  whom  I  shall  call,  for  want 
of  a  better  word,  the  commentator,  as  distinguished  from  the 
glossator.  It  is  a  point  of  view  that  is  concerned  with  the  subject 
matter  rather  than  the  words,  with  the  purposes  of  the  law  rather 
than  its  method,  its  spirit  rather  than  its  letter,  its  principles 
rather  than  its  rules.  It  is  an  appeal  from  the  text  to  common 
sense,  from  technical  rules  to  fundamental  principles.  Maine 
suggests  that : 


12  "THE  LAW"  AND  THE  LAW  OF  CHANGE 

"The  very  conception  of  a  set  of  principles,  invested  with  a 
higher  sacredness  than  those  of  the  original  law  and  demanding 
application  independently  of  the  consent  of  any  external  body  [for 
such  consent  would  constitute  legislation]  belongs  to  a  much  more 
advanced  stage  of  thought  than  that  to  which  legal  fictions  originally 
suggested  themselves." 

But  the  chasm  between  the  two  positions  is  bridged  when 
we  consider  that  the  equity  stage  of  the  exaltation  of  general 
principles  may  come  gradually  through  a  mode  of  study  of  the 
older  law  whereby  principles  are  first  discovered  in  the  growing 
mass  of  rules.  Glossation  itself  may  be  reduced  to  principles  as 
a  first  step.  More  general  principles  will  follow.  They  may  be 
very  indefinite — they  may  be  summarized  in  such  catch-words  as 
"conscience,"  or  in  some  vague  yet  potent  theory  of  a  word  of 
God  or  a  law  of  nature,  or  in  a  peculiar  attitude  that  invests 
general  practice  with  legal  force;  but  when  principles  are  dis- 
covered and  stated  they  will,  it  seems,  be  readily  exalted  above 
the  mere  words,  perhaps  at  first  with  the  aid  of  such  harmless 
fictions  as  the  omniprescience  of  the  law-makers.  The  desire  to 
breathe  the  freer  air  of  general  principles  comes  to  all  peoples 
who  have  suffered  from  the  choking  atmosphere  of  too  many 
particular  rules.  That  desire  is  natural.  The  mode  in  which  it 
is  satisfied  and  the  extent  to  which  it  can  be  satisfied  are  of  course 
largely  accidental,  and  will  differ  in  different  times  and  places. 
So  far  as  the  growth  comes  through  the  administration  of  courts, 
it  is  proper  to  call  this  period  of  growth  the  period  of  equity.  So 
far  as  it  comes  through  the  work  of  students  and  writers,  we 
may  call  it  the  period  of  the  commentators,  or  principle-students. 

The  possibilities  of  growth  by  glossation  and  commenta- 
tion, by  fiction  and  equity,  are  exceedingly  great — far  greater 
than  the  layman  would  suppose — but  there  is  a  limit  to  what  can 
be  done  with  an  old  code.  When  the  breaking  point  is  reached, 
additions  and  modifications  are  generally  made  by  legislation. 
Here  again  I  must  warn  against  too  narrow  a  use  of  the  word. 
The  kind  of  change  that  we  are  now  considering  is  not  neces- 
sarily connected  with  a  legislature.  It  may  be  conscious  or  un- 
conscious. Maine  suggests  that  legislation  necessarily  derives 
its  authority  from  an  external  body  or  person.  But  I  prefer  to 
use  the  term  with  especial  reference  to  the  fact  that  in  this  kind 


"THE  LAW"  AND  THE  LAW  OF  CHANGE  13 

of  law  obligatory  force  is  independent  of  general  principles.  It 
may  be  judicial  legislation  parading  under  a  thin  disguise.  It 
may  simply  be  the  tacit  recognition  of  new  customs.  The  point 
is,  it  is  the  enforcement  of  rules  alongside  of  the  old  code  with- 
out the  pretense  that  they  are  to  be  found  in  the  old  code.  And 
when  a  code  becomes  overburdened  with  new  matter  of  this  kind, 
what  is  more  natural  than  the  adoption  of  a  new  code? 

We  must  distinguish  here  between  a  code  and  practice  books 
such  as  the  abridgement  (a  selection)  which  is  apt  to  appear  in  a 
glossatorial  period,  the  summa  (a  summary)  which  is  apt 
to  appear  before,  and  the  digest  (an  analytical  compilation)  of 
decisions  which  is  apt  to  appear  after  a  commentatorial  period. 
These  may  serve  as  preparatory  works  for  the  codifier.  Indeed, 
the  digest  may  be  a  pandect,  an  all-container,  and  eventually  may 
become  a  code.  But  in  themselves  these  books  are  not  codes.* 
The  distinguishing  mark  of  the  code  is  that  a  people  accepts  it— 
probably  very  gradually — as  the  correct,  authoritative  statement 
of  its  corpus  juris.  When  this  stage  is  reached,  we  are  ready  for 
another  revolution  of  the  cycle.  In  other  words :  every  "Moses," 
every  codifier,  is  followed  by  a  "Joshua,"  a  faithful  disciple  who 
departeth  not  out  of  the  tabernacle,  and  "elders"  who  expound, 
by  "prophets"  who  expand  and  by  an  "assembly"  which  makes  a 
"hedge  around  the  law,"  or  some  other  kind  of  statutes  and 
finally  codifies  again.5  Or  more  technically  the  sequence  may  be 
illustrated  in  a  table : 

Codification 
Glossation 

(word-study  and  fiction) 
Commentation 

(principle-study  and  equity) 
Legislation 
Codification 

4  Many  Jewish  works  of  this  nature  are  popularly  called  codes  (cf.  Jew- 
ish Encyclopedia,  s.  v.  Codification  of  Law),  but  their  failure  to  be  generally 
adopted  precludes  them  from  the  concept  as  used  here.  Thus  Alfasi's  sole 
object  was  to  make  an  "abridgement";  that  of  Maimonides.  the  philosopher, 
was  to  "summarize" ;  that  of  Asher  ben  Jehiel  and  his  son  Jacob  ben  Asher 
was  to  "digest"  the  innovations  of  their  time.  See  below. 


14  "THE  LAW"  AND  THE  LAW  OF  CHANGE 

ILLUSTRATIONS. 

Before  attempting  to  review  Jewish  experience  under  the 
"Law"  in  the  light  of  this  theory  it  may  be  well  to  illustrate  the 
theory  itself  by  the  merest  suggestion  of  its  applicability  to  the 
two  leading  systems  of  law  current  in  Europe  and  America  today 
— the  Roman-continental  system  and  the  Anglo-American 
system. 

A.  Roman-Continental  Law. 

Roman  law  between  the  Twelve  Tables,  its  first  great  code, 
and  the  famous  code  or  culmination  of  attempted  codes  that  bear 
the  name  of  Justinian,  represents  a  perfect  cycle,  the  cycle  on 
which  Maine  bases  his  observation.  This  period  sees  the  strict 
law  and  fictions  of  the  Republic,  the  equity  of  the  praetors  and, 
finally,  the  legislation  of  the  later  emperors.  Between  Justinian 
at  one  end  and  the  series  of  nineteenth-century  codifications  of 
continental  Europe  from  the  Code  Napoleon  to  the  Bilrgerliches 
Gesetzbuch  at  the  other,  a  second  cycle  is  discernible.  The  first 
post-Justinian  jurists  were  glossators — uncritical  acceptors  of 
the  text  till  the  rise  of  the  school  at  Bologna;  critical  thereafter, 
but  glossators  nevertheless.  Their  work  ended  with  the  great 
glossator,  Accursius.  His  followers  were  the  commentators  or 
Bartolists,  whose  chief  work  was  to  adapt  the  Roman  law  to  the 
local  and  temporal  conditions  in  which  they  found  themselves. 
The  sum  total  of  several  centuries  of  this  kind  of  work  was  the 
making  of  a  series  of  national  legal  systems  based  on  custom 
with  Roman  law  as  the  mere  background,  first  as  Roman  law,  then 
as  natural  law.  At  least  we  can  approach  the  meeting  point  of 
Roman  law  and  the  Leges  Barbarorum  from  this  angle  without 
riding  "an  academic  theory  to  death."6  There  comes  a  time  in 

*  Cf.  the  opening  sentence  of  the  Mishnah  Tractate,  'Abhoth:  "Moses 
received  the  Torah  on  Sinai,  and  handed  it  down  to  Joshua ;  Joshua  to  the 
Elders ;  the  Elders  to  the  Prophets ;  and  the  Prophets  handed  it  down  to  the 
men  of  the  Great  Assembly.  They  said:  '.  .  .  Make  a  hedge  around  the 
Torah.' " 

8  The  other  approach,  through  the  "Barbarian  Laws,"  is  in  current  Ger- 
man writings  the  more  popular.  It  is  reflected  in  England  in  Jenks,  Law  and 
Politics  in  the  Middle  Ages. 


"THE  LAW"  AND  THE  LAW  OF  CHANGE  15 

each  country  when  the  national  element  speaks  through  legisla- 
tion and  finally  comes  codification  hastened  in  some  countries  by 
Napoleon,  retarded  in  Germany  by  Savigny  and  his  school. 
Modern  continental  lawyers  with  their  codes  in  their  hands  are 
essentially  glossators. 

B.  Anglo-American  Law. 

The  history  of  Anglo-American  law  is  parallel.7  Two  cycles 
are  discernible  with  the  year  1290  in  the  reign  of  Edward  I,  the 
English  Justinian,  as  the  turning  point.  The  code  or  crystalliza-. 
tion  was  the  series  of  writs  into  which  one's  case  had  to  fit  or 
perish.  The  last  futile  efforts  to  extend  the  list  had  been  made 
in  the  early  years  of  Edward's  reign  through  a  series  of  famous 
statutes.  For  one  hundred  years  before  Edward's  day  the  method 
of  making  the  law  grow  was  by  deliberately  making  new  writs 
for  new  cases  on  the  basis  of  a  general  principle :  no  wrong  with- 
out a  remedy.  We  may  call  this  without  undue  violence  a  period 
of  growth  by  equity.8  Still  earlier  and  back  to  the  Norman  Con- 
quest in  spite  of  a  strong  pretense  of  the  Norman  kings  to  give 
back  the  laws  of  Edward  the  Confessor,  that  is  the  Anglo-Saxon 
crystallized  customs,  there  were  constantly  being  introduced  re- 
forms on  the  basis  of  fictions — especially  the  fiction  that  the 
king's  peace  was  invaded  in  all  cases  of  interference  with  pos- 
session. Since  1290  a  shower  of  handbooks  of  the  law,  and  the 
early  Year  Books  show  the  lawyers  grappling  with  word-prob- 
lems in  the  writs  and  using  fictions  to  make  the  law  applicable. 
"Damnum  absquc  injuria"  delights  the  technical  judges  of  the 
Year  Books.  Soon  equity  came  on  the  scene.  Passing  by  its  early 
beginnings  in  the  fourteenth  and  fifteenth  centuries  we  find  it  the 

1  The  cycles  in  Anglo-American  law  are  fully  worked  out  in  the  Introduc- 
tion to  the  author's  forthcoming  book  of  Select  Cases  and  Documents  Illus- 
trative of  Anglo-American  Legal  History. 

8  Jenks  has  noticed  the  puzzling  fact — puzzling  unless  two  cycles  are  rec- 
ognized in  English  legal  history — that  "there  is,  in  fact,  a  greater  resemblance 
between  the  register  of  writs  and  the  praetor's  edict,  with  its  list  of  formulae, 
than  between  the  edict  and  the  vague  processes  of  the  early  days  of  equity." 
30  Harv.  L.  Rev.  16  (Nov.  1916).  In  view  of  this  very  just  observation,  I 
regret  that  I  am  unable  to  follow  Dean  Pound  in  his  description  of  the  whole 
period  between  the  Norman  Conquest  and  the  equity  of  the  chancellors  as  a 
period  of  "strict  law." 


16  "THE  LAW"  AND  THE  LAW  OF  CHANGE 

chief  instrumentality  in  the  development  of  the  administration  of 
justice  in  the  1500*5  and  1600' s.  The  1700*5  show  it  in  the 
process  of  hardening  and  in  1801,  when  Eldon  comes  into  power, 
it  is  so  well  defined  that  it  has  ceased  to  be  useful  as  a  means  of 
making  new  law.  The  iSoo's  witness  the  application  of  the 
third  instrumentality,  legislation.  We  have  been  deluged  with  it 
in  England  and  America  and  today  we  are  seeking  refuge  in 
codification.  Many  parts  of  our  law  are  already  codified.  What 
becomes  of  these  codes?  Will  a  new  cycle  begin?  Perhaps  the 
best  answer  may  be  had  by  reference  to  a  branch  of  law  that  was 
the  first  to  be  codified  in  America — antedating  the  period  of  gen- 
eral codification  for  peculiar  political  reasons  by  a  century  or 
more.  I  refer  to  constitutional  law.  The  great  constitutional 
decisions  of  the  last  century  are  largely  glossatorial.  What  is 
interstate  commerce  ?  What  is  a  jury  ?  What  is  the  true  meaning 
and  extent  of  the  doctrine  of  liabeas  corpus?  What  is  a  postal 
road?  What  is  due  process  of  law?  What  is  meant  by  the  im- 
pairment of  the  obligations  of  contracts?  What  is  an  ex  post 
facto  law?  What  are  the  privileges  and  immunities  of  citizens? 
The  difficulties  incident  to  the  amendment  of  the  constitution 
have  even  driven  us  in  recent  times  to  the  making  of  some  new 
fictions.  One  of  the  boldest  fictions  ever  perpetrated  was  made 
in  1844.9  It  is  the  wholly  gratuitous  presumption  that  all  of  the 
members  of  a  corporation  are  citizens  of  the  state  in  which  the 
corporation  was  organized,  invented  solely  to  bring  certain  cases 
within  the  constitutional  phrase,  "between  citizens  of  different 
states."  Has  not  the  whole  college  of  presidential  electors  be- 
come a  mere  fiction?  In  addition,  the  constitution  has  been  sub- 
mitted to  stretching  by  the  giving  of  a  very  liberal  meaning  to 
certain  limited  terms — another  variation  of  the  use  of  fiction. 
Thus  in  time  it  became  inevitable  that  Congress  should  have  some 
control  over  trusts,  over  telegraphs,  over  white  slavery,  whether 
commercialized  or  not;  over  food  and  drugs,  over  meat  inspec- 
tion, over  the  length  of  working  days  and  innumerable  other 
subjects  and  all  of  these  powers  have  been  assumed  and  justified 

•See  Louisville,  etc.,  R.  Co.  v.  Letson  (1844),  2  How.  (U.  S.)  497;  »  L- 
Ed.  353;  cf.  Harlan,  J.,  in  Blake  v.  McClung  (1898),  172  U.  S.  239,  259- 


"THE  LAW"  AND  THE  LAW  OF  CHANGE  17 

by  a  single  clause:  "The  Congress  shall  have  power    ...    to 
regulate  commerce    .    .    .    among  the  several  states."  10 

I  shall  digress  a  moment  to  draw  a  further  illustration  from 
the  interpretation  of  the  Constitution  of  the  United  States.  It 
will  serve  as  a  close-up  picture  of  the  first  stages  in  the  post- 
morten  history  of  a  code.  First  it  will  suggest  the  necessary 
incompleteness  of  all  codes  even  at  the  time  of  their  writing,  and 
the  manner  of  filling  them  out  by  drawing  from  "common  law." 
It  was  far  from  the  minds  of  the  draughtsmen  of  the  constitution 
to  enact  unwritten  English  law  into  the  United  States  Constitu- 
tion. Indeed,  Jefferson,  who  was  of  one  spirit  with  many  of 
them,  advocated  an  act  forbidding  the  citation  of  English  cases. 
At  least  two  of  the  United  States  passed  such  acts.  Nevertheless, 
when  courts  were  confronted  with  such  questions  as:  what  is 
habeas  corpus,  what  is  a  jury  and  so  on,  what  could  they  do? 
They  had  to  fall  back  upon  English  decisions  antedating  the  con- 
stitution— in  other  words,  they  had  to  read  the  common  law  into 
the  constitution.  And  this  was  right — for  what  else  could  have 
been  meant  by  such  words,  if  not  what  the  English  law  had  de- 
fined them  to  be?  If  you  adopt  the  language  of  a  country,  you 
tacitly  adopt  its  law.  A  study  of  the  part  that  language  plays 
in  the  psychosis  of  a  people  would  take  me  too  far  afield.  I  shall 
only  call  attention  to  a  few  coincidences.  If  you  draw  a  lan- 
guage map  of  the  world  you  have  a  law  map.  The 
countries  speaking  English — America,  Canada,  South  Africa  and 
Australia — have  essentially  English  law.  The  part  of  Can- 
ada where  the  French  language  is  just  dying  out  is  witnessing 
the  simultaneous  demise  of  French  law.  The  countries  of  South 
America  that  speak  Spanish  are  governed  by  Spanish 
codes.  The  countries  that  speak  languages  based  on  the  Latin 
have  laws  based  on  the  Roman  code.  In  mediaeval  France  the 
line  that  divided  the  land  where  "oc"  meant  "yes"  from  the  land 
where  "oui"  [oil]  meant  "yes"  also  separated  the  country  of  the 
written  law  from  the  country  of  the  oral  custumals.  Lastly,  the 
Pilgrim  Fathers  wanted  to  adopt  the  law  of  God  from  the  Bible, 
but  before  they  knew  it  they  had  imported  with  such  words  as 

"  Article  I,  Sec.  8. 


18  "THE  LAW"  AND  THE  LAW  OF  CHANGE 

sheriff,  will,  heir,  chattels,  county  and  a  thousand  others — the 
English  institutions  that  they  had  meant  to  avoid.  The  relation 
between  language  and  law  is  deep-rooted  and  wonderfully  subtile. 
But  to  return  to  our  subject — to  interpret  a  code  written  in  any 
language  one  must  know  the  common  law  of  the  land  whence  the 
language  came.  Reverting  to  our  study  of  the  periods  in  the 
vicissitudes  of  a  code,  I  may  add  that  this  common  law  is  more 
important  in  a  glossatorial  period  than  in  a  commentatorial  or 
equity  period,  and  that  it  gradually  loses  its  force  in  a  statutory 
period. 

JEWISH  LAW. 

We  are  now  ready  to  apply  these  principles  to  Jewish  law.11 
The  first  cycle,  that  which  led  to  the  completion  of  the  Old  Testa- 
ment of  the  Bible,  is  not  easy  to  approach.  If  modern  scholarship 
has  removed  the  warning,  "The  place  whereon  thou  standest  is 
holy  ground,"  it  has  at  the  same  time  substituted  another,  "Dan- 
ger Zone."  12  Without  attempting  to  date  any  "documents," 

11  In  the  transliterating  of  Hebrew  the  scheme  used  here  is  that  which  I 
employ  throughout  the  new  International  Standard  Bible  Encyclopedia.  I 
am  also  using  the  abbreviations  of  book  names  found  in  that  work. 

"  It  seems  to  me  that  Maine  stopped  short  of  using  the  Bible  for  illus- 
trative purposes  because  of  the  first  of  these  warnings.  Mr.  Oko,  however, 
to  whom  I  wish  to  acknowledge  my  deep  indebtedness  for  innumerable  sug- 
gestions, is  inclined  to  suspect  him  of  having  feared  the  second. 

[That  Maine  in  his  Ancient  Law  should  not  have  drawn  illustrations  for  his 
principle  of  legal  development  also  from  Biblical  legislation,  is  more  than  pass- 
ing strange.  That  he  had  more  than  a  "bowing"  acquaintance  with  Biblical 
law  may  be  inferred  from  his  discussion  of  the  primitive  operation  of  Wills 
(Ancient  Law,  5th  Ed.,  p.  197),  and  of  the  modern  history  of  crimes  (Ibid., 
P-  397)-  J-  D-  Michaelis'  Mosaisches  Recht  (1770-75),  a  work  not  devoid  of 
merit,  was  accessible  to  Maine  in  an  English  translation  under  the  title  Com- 
mentaries on  the  Laws  of  Moses  (4  Vols. ;  London,  1814),  a  title,  as  the 
translator,  Rev.  A.  Smith,  explains,  suggested  by  the  analogy  of  this  work 
to  that  of  Blackstone.  It  should  also  be  noted  that  a  decisive  inroad  of  Ger- 
man theological  scholarship  into  England  had  already  been  made  three 
decades  before  Ancient  Law  was  first  published  (1861)  :  Milman's  History 
of  the  Jews  appeared  anonymously  in  1829.  The  liberal  dean  insisted  that 
the  Bible  should  be  studied  like  any  other  historical  book.  Further,  the  text 
of  the  Old  Testament  was  much  studied  in  England  towards  the  middle  of 
the  nineteenth  century — witness  the  remarkable  volume  of  Essays  and  Re- 
views (1860),  the  work  of  Bishop  Colenso  on  the  Pentateuch,  and  that  of 
Dean  Stanley.  The  trend  of  the  times  is  likewise  reflected  in  the  appearance 
(1862)  of  the  anonymous  translation  of  Spinoza's  Tractatus  Theologico- 
Politicus  by  the  London  physician  Robert  Willis — a  work,  in  which  the  com- 
posite nature  of  the  Pentateuch  was  pointed  out  for  the  first  time  and  in 
which  several  results  of  modern  Old  Testament  scholarship  were  anticipated 
It  is  quite  possible  that  Maine  simply  refrained  from  using  freely  the  Biblical 
knowledge  of  his  day  for  secular  learning  for  fear  of  being  dragged  into  con- 


"THE  LAW"  AND  THE  LAW  OF  CHANGE  19 

without  participating  in  the  controversies  that  are  still  the  battle- 
ground of  specialists,  one  may  venture  to  survey  the  general  legal 
tendencies  of  Old  Testament  times.  For  after  all  the  Biblical 
codes,  whenever  and  by  whomever  they  were  reduced  to  writing, 
are  legal  codes,  subject  in  the  hands  of  men  to  the  ordinary  vicis- 
situdes of  codes — a  fact  too  generally  overlooked  by  radical  and 
conservative  alike.  We  must  remember  that  as  codes  they  are 
incomplete  statements  of  the  law  of  a  people,  and  that  they  are, 
like  the  Constitution  of  the  United  States,  based  on  a  common 
law,  that  they  call  for  interpretation,  and  that  through  interpre- 
tation they  grow.13 

Biblical  common  law — the  common  law  of  the  Hebrews — 
may  need  a  little  elucidation.  Let  us  take  a  few  examples.  In 
the  first  place  Biblical  law  provides  for  a  refuge  from  the  avenger 
of  blood.14  Where  does  it  tell  what  an  avenger  of  blood 
is?  Nowhere.  Everybody  is  presumed  to  know  that  part  of  the 
common  law — and  it  is  not  repealed,  only  mitigated.  Again,  no 
mention  is  made  in  Biblical  law  of  the  rights  of  sons  to  inherit, 
but  assuming  that  everybody  knows  that  principle,  the  Biblical 
language  15  becomes  clear.  It  provides  rules  of  inheritance  in 
case  a  man  die  and  have  no  son.  More  particularly  the  peculiar 
rules  of  primogeniture  of  the  Hebrews — the  giving  of  a  double 
portion  to  the  first-born — are  nowhere  laid  down;  they  are  pre- 


troversy.  We  must  remember  that  from  1860  to  1864  English  academical  and 
clerical  obscurantism  was  much  agitated  by  the  publication  of  Essays  and 
Reviews,  by  the  Colensp  "heresy,"  and  finally  by  the  tremendous  interest 
aroused  by  Darwin's  Origin  of  Species  (1859).  "Maine,"  Sir  Frederick  Pol- 
lock tells  us,  "was  generally  averse  to  controversy." — A.  S.  O.] 

13  Since  writing  this  paper  I  have  been  interested  to  learn  that  the  "con- 
suetudinary"   laws    presupposed    in    Biblical    legislation    were    recognized    by 
Michaelis    one    hundred    fifty   years   ago.     (Commentaries   on    the   Laws   of 
Moses,  Book  I,  Art.  III.)     Michaelis  uses  two  of  the  illustrations  above  and 
adds  that  of  divorce,  which  is  checked,  though  nowhere  specifically  author- 
ized.   Its  authorization  is  in  the  common  law.     (Dt.  22  19,  29;  24  1-4,  AV  and 
RV  are  here  misled  by  the  paraphrase  in  Mt.  6  31,  and  Michaelis  is  right,  cf. 
Jew.  Pub.  Soc.  translation;  Jer.  3  I.)     Michaelis  fails  to  see  in  Jewish  tradi- 
tion an  outgrowth  of  this  "consuetudinary"  law.     Consequently  some  of  the 
conclusions  he  draws  from  his  find  differ  radically  from  the  present  author's. 
Michaelis'  readiness  to  draw  upon  popular  accounts  of  contemporary  Arabic 
culture  for  illustrations  of  the  Bible  contrasts  strangely  with  his  utter  inability 
to  see  the  more  obvious  illustrations  in  Jewish  history. 

14  Nu.  35  9-28 ;  Dt.  19  i-io. 
uNu.  27  8-II. 


20  "THE  LAW"  AND  THE  LAW  OF  CHANGE 

sumed  to  be  known  in  the  discussion  of  the  illegality  of  the  trans- 
ferring of  the  birthright  of  the  child  of  one  wife  to  the 
child  of  another.16  The  levirate  law  is  recited  in  the  Biblical 
codes,17  but  more  attention  is  paid  to  the  haligah,  or  the  formula 
for  its  evasion,  than  to  the  old  custom  itself.18  Now  we  find 
traces  of  all  of  these  institutions  and  many  others  in  the  stories 
of  the  patriarchs  where  they  have  all  the  earmarks  of  common 
law  or  custom.  There  is  the  vendetta  in  the  relations  between 
the  sons  of  Jacob  and  the  men  of  Schechem.19  Inheritance  and 
primogeniture  run  through  the  stories  of  the  patriarchs.  The 
levirate  is  illustrated  in  the  story  of  Judah  and  Tamar.20  In 
short,  strange  as  it  may  seem  to  the  layman,  to  the  jurist  there 
is  nothing  remarkable  in  the  Talmudic  notion  that  before  the 
days  of  the  written  law,  Abraham,  the  Hebrew,  observed  the 
oral  Torah,  the  common  law  of  the  Hebrews.21  But  we  need  not 
center  our  attention  on  the  peculiar  institutions  of  the  Hebrews 
to  see  the  significance  of  their  common  law  in  the  interpretation 
of  the  Hebrew  codes.  Every  Hebrew  word,  in  even  the  simplest 
of  sentences,  carries  with  it  its  bit  of  Hebrew  common  law.  Ba- 
sukkoth  tcshebhii  -  -  in  booths  shall  ye  dwell.22  What  is  a 
sukkahf  How  high  may  it  be  and  still  be  a  sukkahf  How  low? 
Of  what  materials  may  it  be  made?  How  may  it  be  covered? 
What  part  of  its  wall  space  may  be  open  without  doing  violence 
to  the  denotation  and  the  connotation  of  the  term  as  understood 
when  and  where  the  code  was  made  ?  23  The  term  had  some 
connotation  at  the  outset — in  other  words,  there  was  on  these 
points  a  halakhah  leMosheh  misSlnai  or,  in  English,  a  custom 
from  a  time  that  the  memory  of  man  runneth  not  to  the  con- 
trary. And  the  questions  are  legitimate,  legal  and  logical  in  a 

*  Dt.  21  16,  17. 
"Dt.   25  5,6. 
18  Dt.  25  7-10. 
"  Cf.  also  Gen.  9  5. 
20  Gen.  23. 

"  See  commentaries  on  Gen.  26  5,  "because  Abraham  obeyed  my  voice, 
and  kept  my  charge,  my  commandments,  my  statutes,  and  my  laws." 
M  Lev.  23  42. 
"  Cf.  Mishnah,  Sukkah  I.  I. 


"THE  LAW"  AND  THE  LAW  OF  CHANGE  21 

glossatorial  study.  One  source  from  which  to  draw  the  answers 
would  be  the  opinion  of  persons  who  have  retained  the  traditions 
of  the  language.  The  practical  interpretations  of  men  in  differ- 
ent districts  would  also  be  relevant.  In  like  manner  the  learning 
of  the  various  kinds  of  labor  prohibited  on  the  Sabbath  resolves 
itself  into  what  is  mela'khah  (labor)  and  the  '  abhoth  mela'khah 
(principal  divisions  of  labor)  of  the  society  in  which  the  law  was 
declared  or  in  which  it  grew  up  are  proper  subjects  for  the  con- 
sideration of  the  glossator.24 

A.  The  Biblical  Cycle. 

Just  how  long  the  interpretation  of  Biblical  law  was  bona 
fide  explanation  of  what  passages  originally  meant  and  nothing 
more,  it  is  hard  to  say.  Tradition  tells  us  that  Moses  himself 
began  the  process  of  expounding,25  and  Joshua  is  supposed  to 
have  continued  it  as  his  faithful  disciple.26  I  have  already  sug- 
gested an  explanation  in  the  light  of  comparative  jurisprudence 
of  Jewish  tradition's  famous  account  of  itself.  It  is  significant 
that  from  a  host  of  possible  claimants,  including  kings  and 
priests,  it  recognizes  as  its  true  bearers  only  men  who  character- 
ize the  normal  stages  of  legal  development. 

24  The  sacredness  attributed  to  the  Bible  prevented  Jewish  law  from  being 
anything  but  glossatorial  for  a  long  time.  Indeed  the  glossatorial  form  runs 
through  Hebrew  legal  literature  for  many  ages ;  thus  the  halakhic  Midhrashim 
interpret  Biblical  law,  the  Gemara  interprets  the  Mishnah.  But  if  this  glossa- 
torial form  reveals  the  beginning  of  Jewish  legal  science,  even  if  it  points 
out  a  predominant  feature  in  it,  it  must  not  be  taken  as  an  indication  that 
Jewish  legal  learning  remained  glossatorial  in  spirit  through  all  these  ages. 
Indeed  one  of  the  logical  weaknesses  of  Jewish  jurisprudence  from  a  modern 
point  of  view  is  the  very  practice  that  gave  it  its  strength  in  the  past — it  is 
the  attempt  to  base  the  new  code  on  the  older  ones,  where  the  basis  of  the 
new  may  be  independent  of  the  terms  of  the  old,  and  just  as  solid.  Thus, 
"Thou  shalt  not  scathe  a  kid  in  its  mother's  milk,"  were  it  repeated  ten  times 
instead  of  three  would  not  suggest  anything  like  the  Jewish  practice  to  the 
modern  jurist.  Undoubtedly  the  Jewish  practice  is  based  on  very  ancient 
tradition.  Yet  the  ancient  lawyer  who  recited  that  practice,  when  asked  for 
an  authority,  did  what  a  modern  lawyer  frequently  has  to  do  when  he  has  no 
case  on  all  fours  with  the  case  at  bar:  he  cited  an  instance  not  exactly  in 
point,  but  one  showing  a  clear  tendency  in  the  same  general  direction.  If 
one  of  his  followers  thereafter  writes  the  accepted  law  in  the  form  of  an 
annotation  on  the  old  code,  he  leaves  the  impression  that  the  practice  is 
derived  solely  from  the  passage  cited,  a  decidedly  puzzling  impression.  "Queer 
proof  assumes  the  guise  of  queer  inference." 

26  Dt.  i  5,  where  the  Hebrew  be'er  means  "to  explain" ;  cf.  Josephus, 
Contra  Apionem,  II.  17. 

**  Mishnah,  'Abhoth,  I.  i ;  Maimonides,  Mishneh  Torah,  Introduction. 


22  "THE  LAW"  AND  THE  LAW  OF  CHANGE 

It  is  remarkable,  moreover,  that  the  tendencies  suggested 
are  borne  out  by  such  other  evidence  as  we  have  of  the  times 
covered.  Thus,  the  pre-prophetic  age  cannot  be  dismissed  as  a 
codeless  period.  It  is  a  period  of  literalism.  Joshua  and  Jeph- 
thah  must  live  up  to  the  letters  of  their  promises,  no  matter  how 
repugnant  their  deeds  to  the  spirit.  Even  the  great  Samuel  does 
not  tell  us  that  the  spirit  is  greater  than  the  letter,  but  on  the 
contrary:  "Hath  the  Lord  as  great  delight  in  burnt  offerings 
and  sacrifices  as  in  obeying  the  voice  of  the  Lord?  Behold,  to 
obey  is  better  than  sacrifice  and  to  hearken  than  the  fat  of 
rams."  27  This  archaic  pronouncement  might  serve  as  the  motto 
of  a  glossatorial  school.  In  the  same  period  fictions  are  already 
rife — for  example,  the  fictitious  or  symbolic  transfer  or  sale 
necessary  to  bind  a  bargain  in  the  story  of  Ruth,  and  the  fiction 
by  which  a  tribe  is  saved  from  extinction.28  In  the  days  of  the 
early  kings,  David's  worst  enemies  cannot  be  dealt  with 
by  Solomon  without  a  technical  charge  against  them.29  Solomon 
is  told  to  act  according  to  his  wisdom  in  this  matter,  and  the 
essence  of  legal  hokhmah  in  his  day  seems  to  be  to  make  the 
words  of  the  law  do  more  than  was  originally  intended.  In  no 
other  sense  was  the  famous  judgment  of  Solomon  hokhmah.™ 
The  pre-prophetic  period  is  a  literalistic  period;  the  prophetic, 
one  of  equity.  "What  doth  the  Lord  require  of  thee,  but  to  da 
justly,  and  to  love  mercy,  and  to  walk  humbly  with  thy  God?"  31 
Isaiah's  ideal  ruler  "shall  not  judge  after  the  sight  of  his  eyes, 
neither  decide  after  the  hearing  of  his  ears;  but  with  righteous- 
ness shall  he  judge  the  poor,  and  decide  with  equity  for  the  meek 
of  the  land."32  The  spirit  of  the  prophets  is  clearly  a  spirit 
which  our  observation  of  other  systems  would  place  in  time  after 
the  growth  of  formal  law,  and  here  is  a  new  factor  with  which 
some  of  the  theorists  on  the  subject  will  have  to  cope. 

At  the  end  of  the  prophetic  period  a  catastrophe  helped  the 

**  i  S.  15  22-24. 

28  Ruth  4  7 ;  Jgs.  21  16-23. 

"  i  K.  2  6,  36-46. 

"  i  K.  3. 

*  Mic.  6  8. 

MIsa.  ii  3,  4. 


"THE  LAW"  AND  THE  LAW  OF  CHANGE  23 

transition  from  equity  to  legislation.  The  Exile  forced  the 
people  into  a  conscious  readjustment  of  their  lives.  And  it  is  not 
surprising  that  at  the  Return  a  great  period  of  legal  reconstruc- 
tions set  in.  So  many  statutes  or  Takkanoth  could  be  traced  by 
tradition  to  Ezra  and  his  associates  33  that  anonymous  statutes 
were  in  general  popularly  attributed  to  the  men  of  this  time.  These 
were  the  men  who  said,  "Make  a  hedge  around  the  Torah."34  And 
with  Ezra  the  canonization  of  the  Bible — the  authoritative  repos- 
itory of  the  law — begins.  We  have  a  new  codification  and  even 
while  it  is  in  progress  a  new  period  of  literalism  sets  in. 

B.  The  Mishnah  Cycle. 

The  next  cycle,  that  between  the  Old  Testament  canon  and 
the  Mishnah,  is  better  known  to  us  for  its  political  and  religious 
history  than  for  its  legal  development.  It  is  the  period  of  the 
Second  Temple,  of  the  Maccabees,  of  the  birth  of  Christianity. 
of  the  Wars  of  the  Jews,  of  the  destruction  of  the  Temple  and 
of  the  dispersion  of  the  Jewish  people.  These  great  events  did 
not  pass  without  influencing  the  development  of  Jewish  law,  but 
the  period  furnishes  a  remarkable  instance  of  how  the  common 
people's  law  takes  its  natural  course  in  spite  of  catastrophes.  We 
are  told  that  Simeon  the  Righteous,  the  last  of  the  Men  of  the 
Great  Assembly,  was  followed  by  Antigonus  of  Soko  and  he  by 
Zughoth,  "pairs,"  who  through  four  generations  conserved  the 
traditions  to  the  days  of  Hillel  and  Shammai.  Four  generations 
of  Tanna'im  (tannaim,  "teachers,"  a  title  in  this  period),  the 
schools  of  Hillel  and  Shammai,  carry  on  the  tradition  until  the 
next  codification,  the  Mishnah.  Though  very  little  has  been 
written  of  the  steps  by  which  this  law  grew — and  for  this  reason 
I  shall  study  the  period  more  fully  than  the  others — we  have  suffi- 
cient evidence  to  support  the  view  that  glossation  (including 
fictions),  commentation  (including  equity)  and  legislation,  so  far 
as  it  appeared,  followed  each  other  in  the  usual  order. 

*  Ten  in  one  place,  Babha'  Kamma,  82  a. 

"A  Biblical  justification  for  legislation  was  found  in  Dt.  17  9. 


24  "THE  LAW"  AND  THE  LAW  OF  CHANGE 

Of  the  first  step,  the  verbal  expounding  of  the  Bible,  we  have 
several  kinds  of  evidence.  The  reading  of  the  Torah  and  the 
explaining  of  passage  by  passage  in  the  synagogue  is  supposed 
to  go  back  to  Ezra.35  This  method  of  the  study  and  application 
of  the  law  to  which  the  name  of  Midrash  (mid hrash,  from  darash, 
"to  expound")  has  been  given  is,  according  to  a  very  old  reliable 
tradition,  to  be  ascribed  to  the  pre-tannaitic  period.  Sherira 
Gaon  in  his  famous  letter  on  the  history  of  tradition  expressly 
says  that  the  rnidrashic  method  preceded  other  methods  of  study. 
Traces  of  it  are  to  be  found  in  the  Bible.  Glossations  must  have 
become  quite  complicated  very  early  indeed,  for  in  the  period  ot 
the  Zughoth  there  had  already  grown  up  opposition  to  it.  What 
were  the  Sadducees  who  gave  Simeon  ben  Shetah  so  much 
trouble  but  Jews  with  Hellenistic  leanings,  who,  though  accepting 
the  Bible,  rejected  the  tradition  that  pretended  to  interpret  every 
letter  of  it?  What  were  the  early  Christians  but  protesters 
against  the  Scribes  and  Pharisees,  who  held  to  every  jot  and  tittle 
of  the  law,  who  tithed  mint,  anise  and  cummin,  who  made  fine 
distinctions  between  swearing  by  the  temple  and  by  the  gold  of 
the  temple  and  against  the  lawyers  also,  who,  while  lading  men 
with  burdens  grievous  to  be  borne,  seemed  to  leave  the  command- 
ment of  God  to  hold  fast  the  traditions  of  the  elders?  3e 

Besides  Sadduceeism  and  Christianity,  there  was  a  third 
form  of  reaction  against  the  literalism,  the  glossation  that 
marked  the  period  of  the  Zughoih:  it  was  that  of  the  main  bodv 

"  Neh.  8  1-18. 

"I  refer  here  only  to  "the  early  Christians,"  the  small  community  that 
existed  as  a  sect  among  the  Jews  before  it  developed  into  a  church.  For  the 
persistency  of  the  trend  in  human  nature  which  our  cycles  represent  is  illus- 
trated again  in  the  history  of  the  canon  law  of  the  Roman  Catholic  Church. 
Between  the  New  Testament  and  the  closing  of  the  Corpus  Juris  Canonici  in 
the  work  of  Jean  Chappuis  in  1500,  there  is  discernible  first  the  period  in 
which  the  church  fathers  and  the  early  councils  were  busy  interpreting  such 
matters  as  the  effect  of  such  texts  as  Acts  n  and  15  on  the  law,  or  the 
proper  date  for  Easter  or  day  for  the  Sabbath,  a  glossatorial  period.  Then 
comes  a  period  of  the  growth  of  local  customs  and  usages  and  their  expression 
in  local  councils,  a  period  in  which  natural  and  divine  law  or  equity  is  per- 
haps the  dominant  guiding  principle.  The  attempts  to  collect  the  decisions 
from  all  parts  of  the  world  and  to  extract  general  principles  from  them,  from 
Dionysius  Exiguus  to  Gratian's  Concordantia  Discordantium  Canonum,  belong 
here  rather  than  under  codification,  and  indeed  they  have  never  been  recog- 
nized in  the  Catholic  Church  as  codes.  From  Gratian  to  the  close  of  the 
Corpus  Juris  Canonici,  there  are  Extravagantes,  the  five  compilations  sum- 
marized by  Raymond  of  Pennaforte  for  Gregory  IX  (1234)  and  the  Liber 


"THE  LAW"  AND  THE  LAW  OF  CHANGE  25 

of  Israel.  Glossation  was  to  be  softened  by  fiction  under  the 
influence  of  Hillel  and  fiction  was  to  be  followed  by  equity  in  the 
School  of  Hillel. 

Let  us  look  at  the  most  famous  fiction  of  this  period,  the 
Prosbul  (7r/3oo-/3o\?;),  a  fictitious  assignment  of  a  debt  to  the  court 
in  order  to  toll  the  bar  of  the  Biblical  statute  of  limitations.  In 
the  Mishnah  37  we  read : 

"The  Prosbul  ...  is  one  of  the  things  that  Hillel,  the  Elder, 
instituted.  Seeing  that  the  law  which  prescribed  the  release  of  all 
debts  every  seventh  year  38  brought  about  the  harmful  consequence 
that  people  refused  to  loan  one  another  and  thus  violated  what 
was  written  in  the  law,  namely,  that  a  money  loan  should  not  be 
withheld  because  of  the  approach  of  the  sabbatical  year 88  Hillel 
instituted  the  Prosbul." 

Hillel  in  thus  making  the  law  respond  to  the  needs  of  a  com- 
munity that  was  passing  from  agriculture  to  commerce  did  not 
deviate  from  the  letter  of  the  law.  The  institution  is  based  on  a 
peculiar  stressing  of  words  in  the  Bible,  "That  which  is  thine 
with  thy  brother  thine  hand  shall  release."40  The  attitude  of 
later  generations  to  the  Prosbul  is  suggestive:  Samuel  of  the 
first  generation  of  Babylonian  Amoraim,  disliked  it,  whereas 
Rabbi  Nahman,  of  the  third  generation,  the  fiction  period  of  the 
next  cycle,  wished  to  extend  it.41 

Sextus  of  Boniface  VIII  (1290),  the  Clementinae  (1314-1317).  the  Extrava- 
gantes  of  John  XXII  and  Extravagantes  Communes.  These  Extravagantes 
which  precede  the  final  crystallization  of  the  law  correspond  with  what  wf 
have  called  legislation.  Upon  the  code  follows  the  period  of  literalism  that 
countenanced  the  wholesale  sale  of  indulgences.  By  a  queer  irony  the 
church  that  had  its  birth  in  a  revulsion  against  literalism  was  now  faced  by 
a  kind  of  new  Sadducees  who  demanded  a  return  to  the  old  text,  freed  fron 
tradition.  For  them  the  Bible  had  to  be  translated  and  popularized  and  fifteer 
centuries  of  history  forgotten.  It  is  interesting  to  note,  too,  how  Protestan* 
theology  persists  in  describing  Catholicism  as  it  was  at  the  time  of  th» 
schism,  wholly  literalistic,  just  as  Christianity  in  general  describes  Judaism 
though  in  each  counter-reformations  have  set  in  and  the  cycles  have  con- 
tinued turning  on  their  ceaseless  course.  "As  time  goes  on."  says  Professor 
Auguste  Boudinhon,  in  speaking  of  the  interpreters  of  the  Corpus  Juris 
Canonici  of  this  period  (s.  v.  Canon  Law,  Enc.  Brit,  nth  Ed.),  "the  works 
gradually  lose  the  character  of  commentaries  on  the  text,  and  develop  into 
expositions  of  the  law  as  a  whole."  It  will  hardly  be  necessary  to  remind  the 
reader  that  Protestantism  itself  has  not  escaped  institutionalization. 

17  Mishnah,  Sh^bhl'lth,  X.  3. 

"Dt.  15  12. 

*Dt.  159-11. 

40  Dt.  15  3- 

"Gittln,  36  b.  For  another  of  Hillel's  institutions  showing  a  like  tend- 
ency, cf.  Mishnah,  'Arakhln,  IX,  4  on  Lev.  25  30  as  to  the  sale  of  houses. 


26  "THE  LAW"  AND  THE  LAW  OF  CHANGE 

A  better  illustration  of  what  can  be  done  by  fictions  is  fur- 
nished by  'Erilbhin — of  several  kinds,  of  "boundaries,"  of 
"courts,"  of  "cookery" — all  of  them  fictitious  means.  The  first, 
that  of  f'humln  or  boundaries  causes  a  man's  home  to  be  at  any 
spot  he  may  designate  in  advance  so  that  he  may  move  about  in 
a  circle  of  two  miles  around  this  point  on  the  Sabbath.  The  sec- 
ond, of  haferoth  or  courts,  makes  a  fictitious  unit  out  of  a  group 
of  households  so  as  to  permit  transportation  on  the  Sabbath  in  a 
place  that  would  otherwise  constitute  numerous  domains  instead 
of  one  domain.  The  last,  of  tabhshilm  or  cookery,  constitutes  a 
fictitious  nucleus  of  the  Sabbath  meal  when  a  holy  day  falls  on 
Friday,  so  as  to  permit  cooking  on  the  holy  day  for  the  Sabbath ; 
for,  while  it  is  improper  to  prepare  the  Sabbath  meal  on  the  holy 
day,  there  is  no  objection  to  the  making  of  additions  to  a  meal 
already  technically  prepared.  In  addition,  there  is  the  simple 
'crubh,  the  fictitious  completion  of  an  enclosure  by  extending  a 
pole  or  drawing  a  cord  across  the  unfenced  part  of  the  boundary 
of  a  street  or  court  in  order  to  make  an  enclosure  of  it  and  make 
transportation  on  the  Sabbath  within  it  permissible.  The  origin 
of  'Erubhm  is  not  easy  to  trace.  I  am  discussing  them  as  fictions 
of  the  pre-Mishnah  cycle  because  they  were  firmly  established  in 
the  Mishnah  and  we  know  that  the  followers  of  Zadok  and 
Boethius,  the  Sadducees,  fought  against  them  42  as  Sabbath  dese- 
cration. Later  Talmudic  writers,  however,  ascribe  to  them  even. 
greater  antiquity,  connecting  the  creation  of  these  fictions  with 
the  name  of  King  Solomon.  It  is  not  inconceivable  that  some 
parts  of  the  fiction  date  back  to  the  literalistic  period  that  pre- 
ceded the  great  equity  prophets.43 

I  have  drawn  illustrations  of  the  modification  of  law  with- 
out deviating  from  the  letter,  from  the  laws  of  human  relations 
(ben  'adham  la-habhcro)  and  also  from  the  religious  law  (ben 
'adham  la-wakom).  Now  I  shall  show  how  technicality  was  used 
to  mitigate  the  criminal  law.  The  harshness  of  the  criminal  law 
of  the  Hebrews  has  frequently  been  commented  on  by  critics 
and  apologists.  Here,  as  in  English  law,  the  humanity  of  the 
judges  caused  them  to  indulge  in  technicalities.  The  Bible  says : 

"  Mishnah,  'Erubhin,  VI,  2. 

"Cf.  Isa.  i  13;  Jer.  17  21-27;  Ezk.  20  12-24. 


"THE  LAW"  AND  THE  LAW  OF  CHANGE  27 

"At  the  mouth  of  two  witnesses  or  at  the  mouth  of  three  wit- 
nesses shall  a  matter  be  established."  44  This  condition,  say  the 
rabbis,  is  not  fulfilled  if  the  witnesses  differ  in  their  stories  in 
the  smallest  detail.  Again,  take  the  case  of  the  "son,  stubborn 
and  rebellious."  The  Bible  condemned  him  to  death.  But  the 
rabbis  stretched  every  point  in  his  favor.  On  the  basis  of  Bib- 
lical verses  they  insisted  upon  numerous  details  that  had  nothing 
to  do  with  the  culpability  of  the  rebellious  son.  Thus :  45 

".  .  .  he  is  not  declared  a  son  stubborn  and  rebellious  until 
both  parents  desire  it.  If  one  of  them  is  broken-handed  or  lame  or 
dumb  or  blind  or  deaf — he  is  not  declared  a  son  stubborn  and  rebel- 
lious, as  it  is  said  'Then  shall  his  father  and  his  mother  lay  hold  on 
him,'4*  which  is  impossible  if  they  be  broken-handed ;  'and  bring  him 
out,'  which  is  impossible  if  they  be  lame ;  'and  they  shall  say,'  which 
is  impossible  if  they  be  dumb ;  'this,  our  son,'  which  is  inapplicable 
if  they  be  blind ;  'he  will  not  obey  our  voice,'  which  is  inappropriate 
if  they  be  deaf." 

In  general,  capital  punishment  even  for  murder  was  so 
abhorrent  to  the  rabbis  that  its  infliction  was  to  be  prevented  by 
all  legal  means.  A  court  that  condemned  more  than  one  man  in 
seven  years,  or  according  to  others  seventy  years,  was  deemed 
"murderous."  And  two  learned  teachers,  Tryphon  and  Akiba. 
openly  avowed  that  no  one  would  ever  have  been  condemned  t< 
death  by  a  court  had  they  been  members.47 

Hillel,  in  whom  we  have  found  the  tendency  to  develop  the 
law,  did  not  stop  with  fictions.  Though  his  teachers,  Shemayah 
and  Abtalion,  were  glossators,48  in  him  was  realized  the  true 
spirit  of  equity.  There  is  a  Talmudic  story  of  a  scoffer  who  asked 
Hillel's  contemporary,  Shammai,  to  teach  him  the  whole  Torah 
while  standing  on  one  foot.  Shammai,  the  glossator,  could  only 
express  his  indignation.  Hillel,  the  commentator,  could  easily 
extract  the  spirit  from  the  letter  and  in  a  moment  he  summarized 
the  law :  "Do  not  do  unto  others  what  you  would  not  have  them 
do  unto  you."  49  Among  the  principles  that  this  commentator 
developed  were  his  seven  rules  for  the  guidance  of  glossators. 

44  Dt.  19  15;  cf.  ib.  17  6. 

**  Mishnah,  Sandhedrin,  VIII,  4. 

44  Dt.  21  19,  20. 

41  Mishnah,  Makkoth,  I,  10  et  passim;  see  12  Jew.  Encyc.  34  b. 

41  "DarshOtrim"  P^sahim,  70  b. 

**  Shabbath,  31  a. 


28  "THE  LAW"  AND  THE  LAW  OF  CHANGE 

It  is,  of  course,  not  easy  to  summarize  in  a  single  sentence 
all  the  differences  between  the  Schools  of  Hillel  and  Shammai. 
The  strictness  of  the  Shammaites  is  generally  contrasted  with 
the  leniency  of  the  Hillelites.50  One  writer,51  after  rejecting 
various  proposed  solutions,  says:  "In  all  laws  enunciated  by 
these  schools  on  the  basis  of  the  derashic  method,  the  Shammaitic 
school  leans  to  a  more  literal  interpretation  of  the  Biblical  texts 
than  does  that  of  Hillel."  In  the  few  words  of  the  founders  of 
these  schools  that  have  been  preserved,  it  is  not  surprising  to  hear 
Shammai  urging  us  to  "definiteness"  in  learning,  and  Hillel  tell- 
ing us  to  love  people  and  bring  them  near  to  the  Torah.  And  in 
the  ultimate  acceptance  of  the  views  of  the  school  of  Hillel  by 
catholic  Israel,  we  see  the  prevalence  of  equity  over  strict  law. 

Occasionally  interpretation  based  pretty  clearly  on  an  ob- 
served difference  between  theory  and  practice  completely  re- 
verses a  Biblical  text.  Take  the  lex  talionis.  The  Bible  says: 
"Eye  for  eye,  tooth  for  tooth."  The  Mishnah  tells  us  that  this 
means  damages,  payable  in  money.52  Undoubtedly  it  was  so  in- 
terpreted, but  the  origin  of  the  substitution  seems  to  have  been 
the  influence  of  the  judge  on  the  plaintiff.  It  is  equity  mitigating 
the  law. 

Or  take  divorce.  Biblical  divorce  law  is  one-sided.  The 
Mishnah  adds  to  the  Biblical  restrictions  certain  others  and  miti- 
gates the  harshness  of  the  divorce  law  by  throwing  technicalities 
in  the  husband's  way.  The  formalities  in  arranging,  writing, 
attesting  and  delivering  the  "get"  (bill  of  divorcement)  are  made 
so  burdensome  that  rabbinic  aid  is  absolutely  needed.53  It  was 
made  the  duty  of  the  learned  man  consulted  to  do  all  in  his  power 
to  effect  a  reconciliation  of  the  parties  unless  a  sufficient  ground 
for  divorce  were  found.  And  though  the  Bible  gave  the  hus- 
band the  power  to  divorce  his  wife,  and  the  wife  no  correspond- 
ing power,  the  Mishnah  provided  that  in  certain  cases  the  hus- 
band could  be  compelled  to  write  his  wife  a  bill  of  divorcement. 

It  is  idle  to  speculate  as  to  what  Jewish  law  would  have  been 
had  Jewish  national  life  continued  uninterrupted  from  without. 

"3  Jew.  Encyc.  115. 

11  Auerbach,  Obligationenrecht,  p.  72. 

u  Cf.  Babha'  Kamma'  84  a. 

"  Cf.  Kiddushin,  6  a. 


"THE  LAW"  AND  THE  LAW  OF  CHANGE  29 

The  destruction  of  the  Temple,  the  removal  of  the  Synhedrion 
from  Jerusalem  to  Jabneh  and  the  taking  up  of  the  administra- 
tion of  the  law  without  a  government  entailed  new  problems, 
some  of  which  were  met,  strange  as  it  may  seem,  by  legislation, 
by  pronouncements  from  those  men  who  by  general  consent 
were  entitled  to  be  heard.  The  chief  problem,  how  to  preserve 
the  law,  could  be  met  in  the  long  run  only  by  codification.  Two 
types  of  men  were  doing  this  work,  types  that  were  destined  to 
become  more  clearly  differentiated  as  time  went  on:  the  law- 
conservers  and  the  law-improvers.  Johanan  ben  Zakkai  at  this 
time  called  one  of  his  students  a  cemented  cistern  that  loses  not 
a  drop — and  another  a  spring  that  gets  stronger  and  stronger  as 
it  flows.  The  great  law  conservers  were  Simeon  ben  Gamaliel, 
who  laid  the  foundations  for  further  building  in  Palestine,  and 
Eliezer  ben  Hyrcanus,  who  boasted  that  he  never  taught  what  he 
had  not  heard  from  his  teacher.  The  great  law  improvers  were 
Rabbi  Eliezer,  son  of  Arak;  Akiba  and  Rabbi  Meir.  Rabbi  Judah 
the  Prince,  combined  their  traits. 

So  long  as  possible,  codification  and  ossification  were  de- 
layed by  the  wholesome  instinct  of  the  people.  The  recording  of 
halakhoth  was  understood  to  be  forbidden.54  But  the  danger  ot 
forgetting  the  oral  Torah  seems  to  have  overcome  the  prejudice 
and  after  several  generations  of  formulation  of  the  tradition  in 
succinct  sentences  by  the  schools,  a  kind  of  legislation,  if  you 
please,  there  finally  appeared  the  Mishnah,  a  redaction  of  several 
private  compilations  by  Rabbi  Judah,  the  Prince. 

C.  The  Gemara  Cycle. 

In  the  four  centuries  that  intervene  between  the  closing  of 
the  Mishnah  and  the  completion  of  the  Gemara  (gemarar,  mean- 
ing either  "teaching"  or  "completion"),  the  great  annotation  and 
commentary  to  the  Mishnah,  two  periods  stand  out:  the  period 
of  Palestinian  supremacy  and  the  period  of  Babylonian  suprem- 
acy. After  the  first  generation  of  Amoraim  ('amdra'lm,  "dicta- 
tors" the  title  of  distinction  in  this  period),  Rab  and  Samuel  and 
Hanina  bar  Hama — a  very  great  glossatorial  interpreter — had 
passed  away,  it  seems  that  the  two  theories  of  juristic  study  that 

14  Gitfln,  60  b ;  cf.  Temurah,  14  b. 


30  "THE  LAW"  AND  THE  LAW  OF  CHANGE 

had  co-existed  in  pre-Mishnaic  days  were  contending  for  the 
upper  hand.  I  should  call  the  one  literalism  and  the  other  com- 
mentation ;  but  the  devotees  of  the  two  tendencies  were  soon  nick- 
named in  a  manner  that  shows  that  the  tendencies  were  distinctly 
felt:  "Sinai,"  the  Mountain  of  the  Torah,  and  "  'Oker  harim," 
Uprooter  of  Mountains.  By  "Sinai"  was  meant  the  man  with  the 
power  of  acquiring  learning  from  his  teacher  and  of  transmitting 
it.  Such  a  man  was  only  unconsciously  or  accidentally  a  law 
improver.  By  "mountain-uprooter"  was  meant  the  man  who 
could  do  original. work,  whose  chief  business  it  was  to  improve 
the  law.  In  Palestine  there  was  a  strong  tendency  to  prefer  the 
Sinai — perhaps  because,  after  all,  the  great  task  that  confronted 
its  school  at  the  outset  was  the  collection  and  codification  of  the 
law  and  then  its  promulgation. 

So  long  as  the  Palestinian  school  was  supreme  it  was  domi- 
nated by  the  spirit  of  Rabbi  Simeon  ben  Gamaliel,  who  had 
fought  valiantly  for  the  theory  that  Sinai  is  better,55  and  his 
method  of  study  stifled  the  casual  'okere  harim,  the  mountain 
uprooters.  Rabbi  Meir  felt  out  of  harmony  with  his  times,  and 
indeed  he  was  a  genius  born  a  century  too  soon.  Another  of  his 
contemporaries  is  said  to  have  milled  much  grain  and  to  have 
produced  but  little  meal.  In  Babylon,  however,  the  traditions 
had  always  been  freer.  There  the  teachers  had  no  such  responsi- 
bility as  had  been  assumed  in  Palestine.  Perhaps  the  reforming 
tendencies  of  Hillel  are  not  unconnected  with  his  Babylonian 
education.56  At  any  rate,  in  the  times  of  which  we  are  now 
speaking  the  differences  between  the  Babylonian  and  Palestinian 
schools  had  become  remarkable.  An  instance  or  two  will  serve 
as  proof.  Zeera,  in  the  third  generation  of  Gemara  scholars,  as 
the  story  goes,  on  deciding  to  leave  Babylon  for  Palestine,  had 
to  evade  his  teacher  (Rabbi  Judah  ben  Ezekiel,  the  Sharp- 
witted),  and  before  starting  determined  to  spend  a  hundred  days 
in  fasting  in  order  to  forget  the  dialectic  method  of  instruction 

"HdrZydth,  14  a. 

M  An  interesting  story  in  this  connection  is  recorded  in  the  Palestinian 
Talmud,  P^sahlm,  Chap  VI.  Hillel,  some  time  after  his  arrival  in  Pales- 
tine was  asked  a  question.  He  gave  a  clear  answer  and  argued  all  day  to 
prove  his  point,  but  he  was  laughed  at.  Finally,  in  despair,  he  cited  his  teach- 
ers as  authorities  for  his  position.  Thereupon,  according  to  the  rather  sud- 
den statement  of  the  narrator,  they  made  him  president  of  the  Synhedrion. 


"THE  LAW"  AND  THE  LAW  OF  CHANGE  31 

of  the  Babylonian  schools,  that  this  might  not  handicap  him  in 
Palestine.57  In  the  same  generation  (in  the  early  300*5),  we  are 
told,58  a  vacancy  occurred  at  the  head  of  the  Babylonian  school 
of  Pumpadita  —  Pumpadita,  where  they  try  to  pass  the  elephant 
through  the  needle's  eye  in  their  dialectics.  Two  candidates 
were  being  considered  —  Rabbah  bar  Nahmani,  greatest  of  the 
Mountain  Uprooters,59  and  Rabh  Joseph  bar  Hiyya,  a  Sinai. 
Messengers  were  sent  to  Palestine  to  ask  which  the  Palestinians 
recommended.  Of  course,  they  preferred  the  Sinai  —  but  out  of 
deference  to  Babylonian  tendencies,  no  doubt,  he  retired  in  favor 
of  the  'Oker  Harnn.  From  this  time  on  we  see  the  Babylonian 
school  wresting  the  supremacy  from  the  Palestinians.  Auerbach, 
remarking  on  this  strange  phenomenon,  shows60  that  we  know 
of  no  political  or  other  external  conditions  capable  of  explaining 
the  downfall  of  the  Palestinian  school,  and  concludes:  The  one 
inherent  cause  was  the  faulty  method  that  had  been  prescribed 
for  the  study  of  the  law  in  Palestine  for  all  time  to  come  by 
Rabbi  Simeon  ben  Gamaliel.  In  other  words,  the  Sinai  now  gives 
way  to  the  mountain  uprooter,  the  word  student  to  the  student 
of  underlying  principles;  glossators  are  followed  by  commenta- 
tors. 

The  next  generation,  that  of  Abaye  and  Raba  bar  Joseph,  is 
the  greatest  creative  period  of  the  Gemara  in  Babylon  —  whereas 
in  Palestine  the  Gemara  is  beginning  to  close  its  career.  It  is  a 
period  of  growth  by  analogy,  a  period  of  formulation  of  princi- 
ples, a  period  in  which  not  the  words  of  the  Mishnah,  but  only 
the  contents  are  accredited  with  legal  force  —  in  a  word,  a  period 
of  equity.  The  dissertations  of  Abaye  and  Raba  bar  Joseph  led  to 
many  new  decisions  and  rulings.  With  the  exceptions  of  Rab 
and  Samuel,  we  have  more  disputations  of  these  teachers  and  of 
their  immediate  predecessors,  Rabbah  and  Rab  Joseph,  than  of 
any  other  pairs.  Theirs  is  the  greatest  period  in  the  development 
of  the  civil  law.  It  would  be  interesting  to  examine  their  addi- 
tions to  the  body  of  the  law,  but  this  study  would  take  us  too  far 


Bahb&'  Metfd',  85  a. 
At  the  end  of  Hdr&yoth. 
BerHkhOth,  64  a. 
P.  102. 


32  "THE  LAW  A\JD  THE  LAW  OF  CHANGE 

afield.  A  cursory  examination  suggests  that  the  period  witnesses 
a  progress  from  status  to  contract.61  Thus  bailees  are  classified 
in  accordance  with  the  peculiar  circumstances  of  the  bailment  to 
a  greater  degree  than  had  been  done  in  the  Mishnah.62  In  fact, 
sub-classification  on  the  basis  of  peculiar  circumstances  and 
implied  conditions  may  in  general  be  considered  the  method  of 
the  Babylonian  schools  at  the  height  of  their  creative  work. 

After  a  generation  or  two  of  this  work,  the  bulk  of  the  law 
becomes  too  great  for  human  memory  to  carry — and  then  Rabbi 
Ashi  (372-427)  begins  to  reduce  it  to  writing.  His  task  is  car- 
ried on  by  Rabina  (d.  500)  and  finally  closed  within  another 
century  by  men  who  are  no  longer  "dictators,"  but  mere  "sug- 
gesters  (sabhoralm).  Their  work,  the  Gemara,  was  not  a  code 
either  in  form  or  in  its  object.  It  was  rather  a  digest  of  what 
had  gone  before.  It  has  generally  been  recognized  in  Jewry 
that  decisions  cannot  be  based  on  the  Gemara  alone.  It  is  full  of 
the  material  out  of  which  laws  can  be  formulated,  but  it  stops 
short  of  formulation.  And  yet  it  was  a  great  step  in  the  direction 
of  codification.  By  the  adoption  of  certain  rules  as  to  whose  view 
shall  govern  in  each  class  of  cases,  for  practical  purposes  a  digest 
can  be  made  to  do  the  work  of  a  code — and  such  principles  were 
adopted  by  the  successors  of  the  "suggesters,"  the  "excellencies" 
or  the  Geonim  (ge'onim,  plural  of  gaon).Q3  The  geonim  did 
not  hesitate  to  add  to  the  substance  of  the  law  by  a  quasi-statu- 
tory method.  To  make  fictions  on  top  of  the  Talmudic  fictions 
would  surely  have  been  "to  eat  bread  with  bread."  Consequently 
where  changes  were  demanding  attention  in  this  epoch  legislation 
was  needed  and  used.  Takkanoth  and  gezeroth  and  her  ems — in 
a  word,  statutes,  were  promulgated  in  these  times.  The  best 
known,  though  perhaps  not  the  best  authenticated,  were  those 


*  Is  not  this  kind  of  progress  a  mark  of  commentatorial  periods  rather 
than  a  continuous  factor  in  the  history  of  law?  Cf.  Pollock's  Note  L,  to 
chapter  5  of  Maine's  Ancient  Law,  where  reference  is  made  to  "the  reaction 
against  this  doctrine  which  we  are  now  witnessing."  The  phrase  "any  pro- 
vision in  any  contract  to  the  contrary  notwithstanding"  is  becoming  quite 

n  Bahba'  Metfa',  94  b ;  Bahba'  Kamma',  56  b. 

**  In  adopting  these  rules  they  followed  the  precedent  of  the  Gemara 
itself  in  dealing  with  undecided  disputes  in  the  Mishnah. 


"THE  LAW"  AND  THE  LAW  OF  CHANGE  33 

popularly  attributed  to  one  who  was  not  himself  a  gaon,  Rabbenu 
Gershom,  about  the  year  1000,  prohibiting  polygamy  and  regu- 
lating divorce.  But  under  the  Geonim  gradually,  almost  imper- 
ceptibly, the  feeling  spread  among  the  Jews  of  the  world  that 
their  law  was  completed,  crystallized,  or,  in  the  word  that  I  have 
here  adopted,  codified. 

D.  The  Post-Talmudic  Cycle. 

The  Geonim  were  to  the  Talmud  what  the  Scribes  had  been 
to  the  Bible.  They  closed  it.  They  legislated  or  made  a  hedge 
around  it.  They  made  it  a  code  for  the  people  and  closed  a  cycle 
in  the  evolution  of  Jewish  law — but  they  also  began  a  new  cycle  by 
their  undertaking  of  the  work  of  interpreting  the  Talmud.  They 
were  near  in  time  and  in  spirit  to  the  last  of  the  makers  of  the 
Talmud.  They  spoke  the  same  language,  lived  in  the  same  coun- 
try, taught  in  the  same  schools.  Consequently  who  could  speak 
with  greater  authority  than  they  on  doubtful  questions  as  to  the 
meaning  of  the  latest  codification?  Several  of  the  Geonim  de- 
voted their  attention  to  the  exposition  of  special  parts  of  the  law. 
One,  Zemah  ben  Paltoi  (ca.  872)  composed  a  lexicon.  Sherira 
Gaon,  whose  letter  on  Jewish  tradition  we  have  already  men- 
tioned, wrote  annotations  to  explain  many  difficult  terms.  Other 
manifestations  of  a  period  of  strict  law  are  also  apparent.  There 
is  even  a  revolt  against  the  entire  traditional  law.  It  is  that  of 
the  Karaites,  bearing  a  marked  resemblance  to  the  reaction  of 
the  Sadducees  of  the  next  preceding  glossatorial  period.64  The 
typical  handbook  for  such  a  period,  the  "abridgement,"  appears 
in  Alfasi's  work  (1013-1103),  popularly  called  the  Little  Tal- 
mud.65 The  approach  of  a  period  of  principle  study  is  foreshad- 
owed by  the  appearance  of  a  summa,  the  famous  Mishneh  Torah 
of  Maimonides.  This  great  philosopher,  though  seeking  princi- 


**  Another  type  of  reaction  that  frequently  follows  glossation,  is  mysti- 
cism. Corresponding  to  the  Essenes  and  Judeo-Christians  of  an  ealier  day 
and  the  Hasidim  of  later  times,  we  find  the  Kabbalists  developing  their 
theories  at  the  close  of  the  Gaonic  period. 

"  The  Halakhoth  Gedholoth  of  this  period  were  the  results  of  an  attempt 
to  rearrange  the  material  in  the  Talmud  for  practical  purposes. 


34  "THE  LAW"  AND  THE  LAW  OF  CHANGE 

pies,  was  not  far  from  the  glossator  in  spirit,  nor  above  the  mak- 
ing of  fictions.  Thus  he  says :  There  are  things  resembling  usury 
that  are  allowed,  e.  g.,  a  man  may  buy  at  a  discount  bonds 
belonging  to  his  neighbor;  a  man  may  give  his  neighbor  a  dena- 
rius, on  condition  that  he  lends  100  denarii  to  a  third  person;  A 
may  give  B  a  denarius  to  induce  C  to  lend  him  (A)  100  denarii.86 
This  is  hardly  the  spirit  of  those  commentators  from  whom  he 
had  learned  to  condemn,  though  not  always  to  prohibit,  the  "dust 
of  usury"  and  the  "appearance  of  usury."  67 

All  the  purely  glossatorial  work  of  this  period  was  sum- 
marized and  superseded  by  that  of  Rashi.  Rashi  (1040-1105)  is 
the  Accursius  of  the  Jews — his  is  the  last  word  on  the  possibility 
of  the  method  of  the  glossators — but  his  grasp  of  all  parts  of 
the  Torah  at  once  is  so  great  that  he  rises  to  the  height  of  a  com- 
mentator in  spite  of  his  purely  glossatorial  form.  He  is  immedi- 
ately followed  by  a  school  of  men  whom  we  may  well  call  com- 
mentators in  the  technical  sense. 

The  Tosaphists  of  the  twelfth  and  thirteenth  centuries  have 
been  compared  to  the  writers  of  Dissensiones  to  the  Roman  code 
during  the  first  quarter  of  the  twelfth  century  C8  The  very  word 
Tosaphoth  (though  its  particular  application  is  doubtful)  sug- 
gests additions  rather  than  mere  explanations.  The  method  of 
the  Tosaphists  is  to  select  points  and  deal  with  all  of  their  ramifi- 
cations in  little  essays,  rather  than  to  give  a  continuous  explana- 
tion of  the  legal  text  before  them.  Rashi's  own  son-in-law  and 
grandsons  were  the  first  of  the  Tosaphists.69 

It  is  a  mistake  to  suppose  that  the  work  of  the  glossators 
and  commentators  was  purely  academic.  Jewish  law  was  con- 
stantly being  applied  to  life — and  still  is — and  being  developed 
by  posekim,  whose  decisions  and  responses  have  added  a  great 
deal  to  the  bulk  of  the  law.  Of  course,  they  adhered  as  closely  as 
possible  to  the  letter  of  the  transmitted  law — but  as  time  went 


"Mishnah  Torah,  Book  XIII,  Malweh,  Chap.  V,  Sec.  14. 
•'/&.  Sec.  15. 
**  12  Jew.  En  eye.,  p.  202. 

*  In    the   printed    editions    of    the    Babylonian    Talmud    Rashi    and    the 
Tosaphoth  are  arranged  as  a  framework  around  the  text  of  each  page. 


"THE  LAW:>  AND  THE  LAW  OF  CHANGE  35 

on  and  the  occupations,  locations  and  conditions  of  the  bulk  of 
the  Jews  were  completely  changed,  they  had  to  use  a  good  deal 
of  common  sense  in  drawing  analogies  from  the  received  law. 
Where  judges  are  forced  to  use  their  common  sense  in  this  way 
equity  flourishes.  The  fact  that  Jews  were  living  under  widely 
different  conditions  in  different  countries  led  to  the  development 
of  local  minhdghlm  (customs),70  just  as  national  elements  were 
to  be  mingled  with  the  catholic  elements  of  Roman  law  in  the 
period  that  I  have  called  an  equity  period.  It  was  only  a  ques- 
tion of  time  till  dissatisfaction  would  arise  in  some  systematic 
minds  over  the  indefiniteness  of  this  condition.  Indeed,  quite 
within  the  days  of  the  Tosaphists  were  heard  rumblings  of  the 
discontent.  Perhaps  for  the  embodiment  of  this  we  should  look 
to  Asher  ben  Yehiel,  and  to  his  son  Jacob.  Jacob  ben  Asher  (d. 
1340)  drew  the  plans  and  laid  the  foundation  for  the  next  code — 
but  liis  works,  the  Tiinm,  are  not  the  great  code,  they  are  only  a 
digest — a  digest,  it  is  true,  which  takes  cognizance  of  much  new 
matter — but  not  all  of  it  by  any  means,  for  new  matter  was  being 
rapidly  produced  even  while  Jacob  was  compiling  what  he  had 
before  him.  In  course  of  time  this  new  matter  led  to  the  making 
of  a  digest  that  was  to  become  a  code — the  Shulhan  'Arukh 
(Prepared  Table).  In  one  sense  this  famous  work  of  Karo 
(1488-1575)  is  nothing  but  a  revision  of  the  Tiirlm.  But  in 
another  sense  it  is  a  code  in  which  the  lacunae  of  the  older  digest 
are  filled  in  by  a  peculiar  substitute  for  legislation,71  a  substitute 
that  had  been  twice  resorted  to  in  the  history  of  Roman  law — the 
counting  of  hands  among  highly  respected  writers  of  the  past. 
Karo  gives  a  vote  each  to  Maimonides,  Alfasi  and  Jacob  ben 
Asher  on  all  doubtful  matters  and  objectively  records  the  results. 
It  is  significant  that  even  this  objective  method  did  not  please  tha 
German  and  Polish  Jews.  It  failed  to  take  cognizance  of  the 


™  It  is  of  course  beyond  the  scope  of  the  present  study  to  investigate  the 
sources  of  particular  legal  ideas,  for  example  suggestions  borrowed  from 
other  systems  of  law.  It  is  hoped,  however,  that  an  understanding  of  the 
inner  continuity  of  Jewish  law  will  be  helpful  in  the  study  of  external  in- 
fluences. 

"For  true  legislation  in  the  period  see  article  on  Takkanah,  in  n  Jew. 
Encyc.,  p.  669. 


36  "THE  LAW"  AND  THE  LAW  OF  CHANGE 

customs,  the  decisions  and  the  writings  that  had  become  a  part  of 
their  law.  So  Rabbi  Moses  Isserles,  a  younger  contemporary  of 
Karo,  proceeded  to  revise  his  work  for  the  benefit  of  the  northern 
Jews.  He  modestly  characterized  his  contribution  as  a  cloth  for 
the  table  that  Karo  had  prepared.  But  this  table  covered  with 
the  cloth — perhaps  concealed  by  it — soon  was  recognized  by  cath- 
olic Israel  as  its  code. 

E.  The  Present  Cycle. 

The  definiteness  which  now  marked  the  law  of  the  Jews  once 
more  turned  the  attention  of  its  practitioners  and  teachers  to 
glossation.  Not  only  were  three  great  annotations  produced 
within  a  century,  those  popularly  known  as  the  Bah,72  the  Taz,T:J 
and  the  Shakh,74  but  also  the  whole  spirit  of  Jewish  scholarship 
became  the  technical  spirit  of  glossation.  The  tool  that  scholars 
were  to  use  for  nearly  three  centuries  was  by  a  strange  coinci- 
dence fashioned  almost  simultaneously  with  the  Shulhan  'Arukli 
itself.  I  refer  to  the  pilpul.  Rabbi  Jacob  Pollak  (d.  1541)  and 
particularly  his  pupil,  Shalom  Shakna  ben  Joseph  (1510-1558), 
father-in-law  and  teacher  of  Rabbi  Moses  Isserles  (1520-1572), 
are  credited  with  the  invention  of  the  hair-splitting  methods  of 
the  modern  pilpul.  The  word,  which  means  "pepper,"  might 
suggest  a  sharpening  of  wits  of  the  kind  that  we  have  found 
among  the  mountain-uprooters  of  old,  who  were  also  pilpulists 
in  their  way.  But  unfortunately  these  modern  pilpulists  did  not 
address  themselves  to  big  principles.  They  did  work  out  a  few 
petty  fictions  to  adapt  the  law  to  their  life,  notably  the  fictitious 
sale  of  unleavened  bread  on  the  Passover  and  the  fiction  by  which 
a  rabbi  can  be  paid.  Legally  a  rabbi  should  receive  no  pay  for 
his  services,  but  by  the  fiction  he  has  some  other  means  of  sup- 
port and  is  supposed  to  be  paid  for  time  taken  from  his  regular 


"Bayith  Hadhash,  1640. 
"  Tare  Zahabh,  1646. 

T4  Siphethe  Kohen,  1646.  Two  abridgements  have  in  the  last  century 
achieved  as  wide  circulation,  those  of  Abraham  Danzig  and  of  Solomon  Ganz- 
fried.  The  work  of  the  former  is  almost  a  summa;  that  of  the  latter  rather 
a  text-book. 


"THE  LAW"  AND  THE  LAW  OF  CHANGE  37 

work  for  the  needs  of  the  community.  But  in  general  the  teach- 
ings of  the  pilpulists — we  can  still  hear  echoes  of  them — were 
clever,  wonderfully  clever,  disputations,  rich  in  words,  woefully 
poor  in  principles.  Clever  for  cleverness'  sake.  Whatever  good 
there  had  been  in  the  method  in  the  beginning,  it  had. long  been 
over-ripe  and  rotten  in  the  eighteenth  century,  when  newer 
growths  began  to  crowd  for  its  place. 

The  reactions  against  the  modern  Scribes  have  been  differ- 
ent in  different  parts  of  the  world.  The  Reform  in  Germany  and 
Hasidhism'in  southern  Russia,  different  as  they  are  in  externals, 
arc  alike  protests  against  exaltation  of  the  letter;  and  finally 
a  third  movement  opposed  to  both  of  these  is  also  a  mark  of  the 
progress  from  the  glossatorial  to  the  commentatorial  stage,  from 
the  stage  where  growth  is  by  fiction  to  the  stage  where  growth  is 
by  equity.  Rabbi  Elijah  of  Wilna  was  opposed  to  the  pilpul 
and  substituted  a  method  of  teaching  that  looked  to  the  sense 
rather  than  the  words.  I  quote  Mr.  J.  D.  Eisenstein :  75 

"The  Reform  movement  on  the  one  side  and  the  ensnaring 
hasidic  tendencies  on  the  other  caused  the  pupils  of  the  Wilna  Gaon 
to  deliberate  how  they  might  preserve  the  true  Jewish  learning  and 
perpetuate  the  method  and  style  of  study  inaugurated  by  the  Gaon, 
who  was  rather  opposed  to  the  pilpul  and  hillukim  [disquisitions] 
as  practiced  in  the  Yeshibot  of  Poland.  With  this  aim  Rabbi  Hay- 
yim  the  chief  disciple  of  the  Gaon,  organized  in  1803  the  celebrated 
Yeshibah  [Rabbinic  school]  at  Volozhin." 

The  significance  of  Elijah  ben  Solomon,  the  "gaon"  of 
Wilna,  is  just  coming  to  be  understood.  Never  having  studied 
at  any  Yesliibhdth,  never  prejudiced  by  the  perverted  methods  of 
study  then  in  vogue,  he  escaped  casuistry.  His  pupils  had  to  pur- 
sue the  same  plain  and  simple  methods  of  study  that  he  followed. 
Though  he  himself  founded  no  school,  his  lessons  were  gradu- 
ally learned  by  the  Jews  of  the  world.  Volozhin  became  the 
model  of  the  Yeshibhoth  of  Poland  and  surrounding  countries, 
of  Palestine  and  of  America.  One  or  two  instances  of  the  mod- 
ernizing tendencies  of  these  Yeshibhoth  may  be  interesting.  The 
Yeshibhah  of  the  late  Rabbi  Reines  of  Lida  included  modern 

"  12  Jew.  Encyc.  598,  s.  v.  "Yeshibah." 


38  "THE  LAW"  AND  THE  LAW  OF  CHANGE 

subjects  in  its  curriculum,  as  does  Yeshibhath  Rabbi  Isaac  Elha- 
nan,  of  New  York.  Meanwhile,  the  neo-orthodoxy  of  western 
Europe  and  America  has  been  occupied  with  a  restatement  of  its 
whole  position,  in  which  equity  surely  predominates  over  pilpul. 
Even  Rabbi  Isaac  Elhanan  Spektor,  the  late  leader  of  modern 
Russo-Polish  orthodoxy  and  a  supporter  of  the  Volozhin  Yeshi- 
bhah,  joined  hands  with  the  movement  in  the  West,  when  he 
urged  Samson  Raphael  Hirsch,  the  father  of  neo-orthodoxy,  to 
write  his  "Uber  die  Bcsiehung  des  Talmuds  zum  Judenthum." 

To  go  further  would  be  to  tread  the  halls  of  living  men — or 
even  to  pierce  the  veil  of  the  future.  I  shall  do  neither.  Even 
if  it  were  possible,  it  would  be  irreverent  to  gaze  with  too  curious 
an  eye  upon  the  mystery  of  the  continuity  of  Jewish  life  through 
the  adverse  ages — or  upon  the  related  mystery  of  the  continuity 
of  any  people's  law  as  an  expression  of  its  own  national  life  and 

aspirations. 

Nathan  Isaacs. 

Cincinnati  Law  School. 


University  of  California 

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